No.

24-____

IN THE

Supreme Court of the United States

————

KAREN READ,
Petitioner,
v.
NORFOLK COUNTY SUPERIOR COURT;
ANDREA J. CAMPBELL, Massachusetts Attorney General,
Respondents.
————

On Petition for a Writ of Certiorari to the

United States Court of Appeals
for the First Circuit

————

PETITION FOR A WRIT OF CERTIORARI

————

MICHAEL PABIAN MARTIN G. WEINBERG

20 Park Plaza Counsel of Record
Suite 1000 MARTIN G. WEINBERG, P.C.
Boston, MA 02116 20 Park Plaza
(617) 227-3700 Suite 1000
pabianlaw38@[Link] Boston, MA 02116
(617) 227-3700
owlmgw@[Link]
Counsel for Karen Read

April 1, 2025

WILSON-EPES PRINTING CO., INC. – (202) 789-0096 – WASHINGTON, D.C. 20002

 i

QUESTIONS PRESENTED

1. Whether a final and unanimous, but

unannounced, decision by a jury following trial that
the prosecution failed to prove a defendant guilty of
a charged offense constitutes an acquittal precluding
retrial under the Double Jeopardy Clause.

2. Whether a defendant who produces

credible evidence of such a final, unanimous, and
unannounced acquittal is entitled to a post-trial
hearing to substantiate the fact of such acquittal.
 ii

RELATED PROCEEDINGS

Read v. Norfolk County Superior Court, No. 25-

1257, U.S. Court of Appeals for the First Circuit,
Judgment entered March 27, 2025.

Read v. Norfolk County Superior Court, No. 25-

CV-10399, U.S. District Court for the District of
Massachusetts, Order denying habeas petition
entered March 13, 2025.

Read v. Commonwealth, No. SJC-13663,

Supreme Judicial Court of Massachusetts, Opinion
entered February 11, 2025.

Commonwealth v. Read, No. SJ-2024-0332,

Supreme Judicial Court for Suffolk County,
Judgment entered March 12, 2025.

Commonwealth v. Read, Criminal Action 22-

00117, Norfolk County Superior Court, Order
denying motion to dismiss entered August 23, 2024.
 iii

TABLE OF CONTENTS

QUESTIONS PRESENTED . . . . . . . . . . . . . . . . . . . i

RELATED PROCEEDINGS . . . . . . . . . . . . . . . . . . .ii

TABLE OF AUTHORITIES . . . . . . . . . . . . . . . . . . . v

OPINIONS BELOW . . . . . . . . . . . . . . . . . . . . . . . . . 1

STATEMENT OF JURISDICTION . . . . . . . . . . . . . 1

THE CONSTITUTIONAL PROVISIONS

INVOLVED . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

INTRODUCTION . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

STATEMENT OF THE CASE. . . . . . . . . . . . . . . . . . 3

A. Read’s First Trial Ends in a Mistrial . . . . . . .3

B. Post-Trial Juror Statements Reveal

that Jury Found Read Not Guilty on
Counts 1 and 3 . . . . . . . . . . . . . . . . . . . . . . . . .6

C. Read Raises Her Constitutional Claim

in State Court . . . . . . . . . . . . . . . . . . . . . . . . . 9

D. Decision Below . . . . . . . . . . . . . . . . . . . . . . . .11

REASONS WHY THE WRIT SHOULD

BE GRANTED . . . . . . . . . . . . . . . . . . . . . . . .12

I. The First Circuit’s Ruling Conflicts

with This Court’s Double Jeopardy
 iv

Caselaw, Including its Consistent

Emphasis on Substance Over Form
in Determining What Constitutes
an Acquittal . . . . . . . . . . . . . . . . . . . . . . . . . 12

II. The First Circuit’s Ruling that Read

Was Not Entitled to Post-Trial
Inquiry to Substantiate the Fact of
the Acquittals Is Inconsistent with
This Court’s Caselaw . . . . . . . . . . . . . . . . . . 20

CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . . . . . . .25
 v

TABLE OF AUTHORITIES

Cases

A Juvenile v. Commonwealth, 392 Mass.

52 (1984) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19

Ball v. United States, 163 U.S. 662 (1896) . . . .16, 19

Blueford v. Arkansas, 566 U.S. 599

(2012) . . . . . . . . . . . . . . . . . . .1-2, 11, 14, 17-19

Clark v. United States, 289 U.S. 1 (1933) . . . . . . . 24

Commonwealth v. Read, 495 Mass. 312

(2025) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5

Dennis v. United States, 339 U.S. 162

(1950) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20-21

Erlinger v. United States, 602 U.S. 821

(2024) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12-13

Green v. United States, 355 U.S. 185

(1957) . . . . . . . . . . . . . . . . . . . . . . 14, 16-17, 20

Hamdi v. Rumsfeld, 542 U.S. 507 (2004) . . . . . . . . 22

Harris v. Nelson, 394 U.S. 286 (1969) . . . . . . . . 22-23

Hudson v. Louisiana, 450 U.S. 40 (1981) . . . . . . . . 16

Martinez v. Illinois, 572 U.S. 833 (2014) . . . . . . . . .14

 vi

McElrath v. Georgia, 601 U.S. 87

(2024) . . . . . . . . . . . . . . 3, 11-12, 15, 17, 23-24

Pena-Rodriguez v. Colorado, 580 U.S. 206

(2017) . . . . . . . . . . . . . . . . . . . . . . . . . . . 13, 24

Price v. Georgia, 398 U.S. 323 (1970) . . . . . . . . . . 16

Remmer v. United States, 347 U.S. 227

(1954) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21

Smith v. Phillips, 455 U.S. 209 (1982) . . . . . . . . . .21

Townsend v. Sain, 372 U.S. 293 (1963) . . . . . . 22-23

United States v. Dotson, 817 F.2d 1127

(5th Cir. 1987) . . . . . . . . . . . . . . . . . . . . 18, 22

United States v. Martin Linen Supply Co.,

430 U.S. 564 (1977) . . . . . . . . . . . . . . . . .13-14

United States v. Stauffer, 922 F.2d 508

(9th Cir. 1990) . . . . . . . . . . . . . . . . . . . . 18, 22

Warger v. Shauers, 574 U.S. 40 (2014). . . . . . . . . 24

Williams v. Taylor, 529 U.S. 420 (2000) . . . . . . . . 22

Constitutional Provisions

Fifth Amendment,
United States Constitution . . . . . . 1, 13-14 21

Sixth Amendment,
United States Constitution . . . . . . . .13, 20, 24
 vii

Statutes

28 U.S.C. § 2241 . . . . . . . . . . . . . . . . . . . . . . . . 11, 22

28 U.S.C. § 2246 . . . . . . . . . . . . . . . . . . . . . . . . . . . 23

28 U.S.C. § 2254 . . . . . . . . . . . . . . . . . . . . . . . . . . . 22

Other Authorities

Fed. R. Evid. 606(b) . . . . . . . . . . . . . . . . . . . . . . . . 24

Mass. R. Crim. P. 27(b) . . . . . . . . . . . . . . . . . . . . . 19

 1

OPINIONS BELOW

No official citation of the opinion of the First

Circuit Court of Appeals is yet available, but the
opinion may be found at 2025 WL 926289 (1st Cir.
Mar. 27, 2025). Pet. App. 1a-19a. The opinion of the
district court is unpublished but is available at 2025
WL 815048 (D. Mass. Mar. 13, 2025). Pet. App. 20a-
56a. The opinion of the Massachusetts Supreme
Judicial Court is reported at 495 Mass. 312, 250
N.E.3d 551. Pet. App. 57a-87a. The Massachusetts
Superior Court’s order denying Read’s motion to
dismiss is not reported. Pet. App. 88a-114a.

STATEMENT OF JURISDICTION

The judgment of the First Circuit was entered on

March 27, 2025. This Court has jurisdiction to
review the judgment of the First Circuit on a writ of
certiorari under 28 U.S.C. § 1254(1).

THE CONSTITUTIONAL PROVISIONS

INVOLVED

The Double Jeopardy Clause of the Fifth

Amendment provides: “nor shall any person be
subject for the same offence to be twice put in
jeopardy of life or limb.” U.S. Const. amend. V.

INTRODUCTION

This case is an ideal vehicle to resolve an issue of

fundamental constitutional importance argued to the
Court but not decided in Blueford v. Arkansas, 566
U.S. 599 (2012). The petitioner in Blueford argued
 2

that, where the jury actually resolved some elements

of a charged offense in the defendant’s favor, no
formal verdict need be returned for that decision to
constitute an acquittal prohibiting re-prosecution
under the Double Jeopardy Clause. The divided
Court did not decide that question because, in
Blueford, the majority concluded that the
foreperson’s mid-deliberation report regarding the
jury’s votes “lacked the finality necessary to amount
to an acquittal . . . , quite apart from any
requirement that a formal verdict be returned or
judgment entered.” Id. at 608.

The instant case squarely presents the question

that Blueford did not decide. Here, beginning the
day after petitioner’s first trial ended in a mistrial,
four jurors contacted trial counsel to inform them
that the jury had reached a final and unanimous,
but unannounced, conclusion that petitioner Karen
Read is not guilty of murder in the second-degree
and leaving the scene of the collision, two of the
three charges pending against her. A statement by a
fifth juror, relayed indirectly to counsel via two
intermediaries, indicated that the jury had agreed
that Read is not guilty of the murder charge. In
addition, one of the jurors made a similar
representation to the prosecutor. The jury’s not
guilty verdicts were not announced because the trial
court, believing but not confirming that the impasse
reported in a series of three juror notes applied to
all, rather than only some, counts, never inquired
regarding the scope of the deadlock and the jurors
failed to volunteer to the trial court that their
impasse was limited to one of the three counts rather
than all.
 3

The First Circuit held, “even if we assume that

the jury unanimously voted in private that the
prosecution had failed to prove its case on Counts
One and Three, the jury did not ‘act[] on [that]
view,’” and, accordingly, there was “no act here that
could be considered a ‘ruling’ or characterized as an
acquittal.” Pet. App. 18a (quoting McElrath v.
Georgia, 601 U.S. 87, 96 (2024)). That holding runs
contrary to this Court’s repeated emphasis, over
more than a century, that what constitutes an
acquittal for purposes of the Double Jeopardy Clause
is controlled by substance, not form. The First
Circuit’s related denial of a post-verdict voir dire
further prevented Read from proving from all 12
jurors what many of them without any contradiction
from the other jurors were representing: that they
had reached a final, unanimous, unconditional
decision to find her not guilty of murder (Count 1)
and leaving the scene (Count 3).

STATEMENT OF THE CASE

A. Read’s First Trial Ends in a Mistrial

On June 9, 2022, Read was charged in three

separate indictments with second-degree murder in
violation of Mass. Gen. Laws c. 265, § 1 (Count 1);
manslaughter while operating under the influence of
alcohol in violation of Mass. Gen. Laws c. 265, § 13½
(Count 2); and leaving the scene of a collision
resulting in death in violation of Mass. Gen. Laws c.
90, § 24(2)(a½)(2) (Count 3). COA Joint App. 186-91.
A jury trial began on April 16, 2024 in
 4

Massachusetts Superior Court. The trial court

declared a mistrial on July 1, 2024.

On June 25, 2024, the jury began deliberations

after receiving instructions from the trial court. The
court instructed the jurors, “You should continue
deliberating until you have reached a final verdict on
each charge.” COA Joint App. 237. It also noted
that Count 2 contained “lesser included charge[s]” of
involuntary manslaughter and motor vehicle
homicide, which the jury should consider “even if
[the Commonwealth] fail[ed] to prove the greater
charge of manslaughter while operating a motor
vehicle under the influence of liquor.” COA Joint
App. 226, 229. Later, in supplemental instructions
to the jury, the court again described Count 2 as
“encompass[ing] three separate charges.” COA Joint
App. 270.

On June 28, 2024, the fourth day of deliberations,

the jury sent the following note to the court: “I am
writing to inform you on behalf of the jury that
despite our exhaustive review of the evidence and
our diligent consideration of all disputed evidence,
we have been unable to reach a unanimous verdict.”
COA Joint App. 297. The court sent the jury back to
continue deliberations. COA Joint App. 301.

On July 1, 2024, the jury presented another note,

stating:
despite our commitment to the duty entrusted
to us, we find ourselves deeply divided by
fundamental differences in our opinions and
state of mind. The divergence in our views
are not rooted in a lack of understanding or
 5

effort but deeply held convictions that each of

us carry, ultimately leading to a point where
consensus is unattainable. We recognize the
weight of this admission and the implications
it holds.
COA Joint App. 311. The court gave a so-called
Tuey-Rodriguez charge, 1 and sent the jury back to
continue deliberations. COA Joint App. 311-14.

Later that day, the jury sent yet another note:

despite our rigorous efforts, we continue to
find ourselves at an impasse. Our
perspectives on the evidence are starkly
divided. Some members of the jury firmly
believe that the evidence surpasses the
burden of proof, establishing the elements of
the charges beyond a reasonable doubt.
Conversely, others find the evidence fails to
meet this standard and does not sufficiently
establish the necessary elements of the
charges. The deep division is not due to a lack
of effort or diligence but, rather, a sincere
adherence to our individual principles and
moral convictions. To continue to deliberate
would be futile and only serve to force us to
compromise these deeply held beliefs.
COA Joint App. 315. After reading the note on the
record, the court, without any apparent
consideration of alternatives such as asking whether
the impasse was to all as opposed to just some
1 “The Tuey-Rodriguez charge is a model instruction given
when jurors report deadlock after due and thorough
deliberation that is designed to urge the jury to reach a verdict
by giving more serious consideration to opposing points of
view.” Commonwealth v. Read, 495 Mass. 312, 315 n.4 (2025)
(citation omitted).
 6

counts and without first inviting counsel to be heard,

sua sponte declared a mistrial and dismissed the
jury. COA Joint App. 315.

B. Post-Trial Juror Statements Reveal that Jury

Found Read Not Guilty on Counts 1 and 3

The following day, on July 2, 2024, unsolicited by

any party, one of the jurors (“Juror A”) contacted one
of the attorneys for Read, Alan Jackson. Juror A
stated that s/he “wish[ed] to inform [Attorney
Jackson] of the true results” of the jury’s
deliberations. COA Joint App. 333. According to
Juror A, “the jury unanimously agreed that Karen
Read is NOT GUILTY of Count 1 (second degree
murder). Juror A was emphatic that Count 1
(second degree murder) was ‘off the table,’ and that
all 12 of the jurors were in agreement that she was
NOT GUILTY of such crime.” COA Joint App. 334
(emphasis added). “[T]he jury also unanimously
agreed that Karen Read is NOT GUILTY of Count 3
(leaving the scene with injury/death).” COA Joint
App. 334.

One day later, on July 3, 2024, another attorney

for Read, David Yannetti, was contacted by “two
different individuals (hereinafter, ‘Informant B’ and
‘Informant C’) who had received information from
two distinct jurors (hereinafter ‘Juror B’ and ‘Juror
C’) both of whom were part of the deliberating jury
in this case.” COA Joint App. 330.

Informant B sent Attorney Yannetti “a

screenshot he/she had received from someone
(hereinafter, ‘Intermediary B’) of text messages that
 7

Intermediary B had received from Juror B. In that

screenshot, Juror B texted the following to
Intermediary B: ‘It was not guilty on second degree.
And split in half for the second charge. . . . I thought
the prosecution didn’t prove the case. No one
thought she hit him on purpose or even thought she
hit him on purpose [sic].’” COA Joint App. 330
(emphasis added). Juror B later placed an
unsolicited phone call to Attorney Yannetti,
confirming that the foregoing information, which
had been publicly filed in an affidavit, was accurate.
COA Joint App. 377. “Juror B clarified, however,
that he/she meant to write, ‘No one thought she hit
him on purpose or even knew that she had hit him.’”
COA Joint App. 377-78. Juror B further told
Attorney Yannetti s/he “believe[d] that every
member of the jury, if asked, w[ould] confirm that
the jury reached Not-Guilty verdicts on indictments
(1) and (3).” COA Joint App. 378.

Informant C had been in contact with another

individual (“Intermediary C”) who is a co-worker and
friend of Juror C and joined a Zoom meeting during
which Juror C discussed the trial. Informant C sent
Attorney Yannetti the below screenshots of his/her
text messages with Intermediary C regarding what
Juror C revealed in the Zoom meeting:
Intermediary C: “no consideration for murder
2. manslaughter started polling at 6/6 then
ended deadlock @ 4no8yes.”

….

Informant C: “interesting. if it was no

consideration for murder two, shouldn’t she
 8

have been acquitted on that count. and hung

on the remaining chargers [sic] goes back to
the jury verdict slip that was all confusing”

Intermediary C: “she should’ve been acquitted

I agree. Yes, the remaining charges were
what they were hung on. and that instruction
paper was very confusing.”
COA Joint App. 331-32.

After the filing of Read’s initial motion to dismiss,

but before the superior court hearing on that motion,
Attorney Jackson was contacted by two other
deliberating jurors. The first, “Juror D,” stated “that
the jury reached NOT GUILTY verdicts on Count 1
and Count 3, and that the disagreement was solely
as to Count 2 and its lesser offenses.” COA Joint
App. 340. S/he recounted that, “after the jury was
excused and aboard the bus, many of the jurors
appeared uncomfortable with how things ended,
wondering, Is anyone going to know that we
acquitted [Karen Read] on Count 1 and 3?” COA
Joint App. 340 (emphasis added). Juror D
unequivocally told counsel, “Every one of us will
agree and acknowledge that we found [Karen Read]
NOT GUILTY of Counts 1 and 3. Because that’s
what happened.” COA Joint App. 340. “Juror E”
similarly stated “that the jury was ‘unanimous on 1
and 3’ that Karen Read was NOT GUILTY of those
charges.” COA Joint App. 370.

The Commonwealth filed a post-trial notice of

disclosure informing the court that, “[o]n Sunday
July 21, 2024, [an] Assistant District Attorney
[‘ADA’] . . . received an unsolicited voicemail on his
 9

office’s phoneline from an individual, who identified

their self as a juror by full name and seat number.”
COA Joint App. 372. The message stated, “it is true
what has come out recently about the jury being
unanimous on charges 1 and 3.” COA Joint App.
372. The ADA received a subsequent message from
the same individual stating s/he could “confirm
unanimous on charges one and three, as not guilty
and as of last vote 9-3 guilty on the manslaughter
charges . . . .” COA Joint App. 372. The
Commonwealth additionally “received emails from
three individuals who identified themselves as
jurors” and “indicated they wished to speak
anonymously.” COA Joint App. 372. The
Commonwealth declined to substantively respond to
the voice messages or emails, instead claiming in
responsive emails that it was ethically prohibited
from discussing such matters. COA Joint App. 372.

C. Read Raises Her Constitutional Claim in

State Court

Read moved in the state trial court to dismiss

Counts 1 and 3 arguing that the jury’s final and
unanimous decision, reflected in the post-trial
affidavits, that she is not guilty of those counts
constituted an acquittal precluding re-prosecution.
COA Joint App. 323-24. Read additionally argued
that she was entitled to a post-verdict judicial
inquiry to substantiate the fact of the acquittals.
COA Joint App. 327-28. The trial court denied
Read’s motion. The court “accept[ed]” the juror
statements reflected in the affidavits “as true and
accurate,” as did each other court that reviewed the
legal issues, for purposes of ruling on the motion, but
 10

held that, “[b]ecause there was no open and public

verdict affirmed in open court rendered in this case,
the defendant was not acquitted of any of the
charges.” Pet. App. 100a. The court also held that
Read was not entitled to post-verdict inquiry because
her argument did “not implicate racial bias or her
right to receive an impartial trial” and because her
request “would necessarily require inquiry into the
back and forth among the jurors during
deliberations.” Pet. App. 112a-113a. 2

Read petitioned the Massachusetts Supreme

Judicial Court (“SJC”), pursuant to Mass. Gen.
Laws. c. 211, § 3, to review the superior court’s
ruling. COA Joint App. 52-88. A single justice
referred the petition to the full court. COA Joint
App. 470. The SJC ultimately affirmed the denial of
Read’s motion to dismiss concluding, like the trial
court had, that, “because the jury did not publicly
affirm that the defendant was not guilty of the
charges, there was no acquittal barring retrial under
the double jeopardy clause.” Pet. App. 83a-84a. The
SJC additionally held that “the trial judge did not
err or abuse her discretion in denying [Read’s]
request for [post-trial] inquiry where it would not
change the outcome of the defendant’s first trial.
The jury chose to report a deadlock, not a verdict,
and no basis exists for further investigation into
private discussions or subjective beliefs they
declined to announce publicly in open court.” Pet.
App. 87a.

2 Read additionally contended that there was no manifest

necessity to support the declaration of mistrial on Counts 1 and
3, but that claim is not raised in this Petition.
 11

D. Decision Below

Read subsequently filed a federal petition for writ

of habeas corpus, pursuant to 28 U.S.C. § 2241 in
federal district court, again contending, inter alia,
that the jury’s conclusion that she is not guilty
constituted an acquittal and that she was entitled to
post-verdict inquiry on that issue. COA Joint App.
36-46. The district court denied her petition, and
Read appealed to the First Circuit.

A panel of the First Circuit affirmed. The First

Circuit began from the premise, long-established in
this Court’s caselaw, that, “[i]n deciding whether a
defendant was acquitted,” the court must “‘focus on
substance over labels,’ and ‘look to whether the
ruling’s substance relates to the ultimate question of
guilt or innocence.’” Pet. App. 16a (quoting
McElrath v. Georgia, 601 U.S. 87, 94, 96 (2024)).
Despite the fact that the Blueford Court expressly
declined to find that lack of a formal verdict was
dispositive regarding the Double Jeopardy
implications of a jury finding, the First Circuit found
Blueford to be “dispositive.” Pet. App. 17a. The
First Circuit stated the post-trial juror statements
here were “far weaker” than the foreperson’s mid-
deliberation statement in Blueford because the
statements here “do not describe when any votes
were taken or whether such votes were preliminary
or formal. Like Blueford, there is no sign that a final
vote was taken, meaning that if any deliberations
continued after a vote, jurors could have changed
their minds. Nor did the jury announce its verdict in
open Court.” Pet. App. 18a (citations omitted).
Ultimately, the First Circuit concluded, “even if we
 12

assume that the jury unanimously voted in private

that the prosecution had failed to prove its case on
Counts One and Three, the jury did not ‘act[] on
[that] view,’” and “[t]here was simply no act here
that could be considered a ‘ruling’ or characterized
as an acquittal.” Pet. App. 18a (quoting McElrath,
601 U.S. at 96). The First Circuit also concluded
that the post-trial hearing requested by Read “would
not be appropriate” because “the content of jury
deliberations is [typically] kept secret to enable
jurors to discuss their views freely and frankly and
to protect them from harassment.” Pet. App. 19a.

Read is facing re-prosecution starting with jury

selection on April 1, 2025 by the same prosecutor for
the very same offenses – murder and leaving the
scene – despite powerful evidence that the jury in
her prior trial found her not guilty. An Application
for Stay of State Court Proceedings Pending
Disposition of this Petition for Certiorari has been
filed contemporaneously herewith.

REASONS WHY THE WRIT SHOULD BE

GRANTED

I. The First Circuit’s Ruling Conflicts with This

Court’s Double Jeopardy Caselaw, Including its
Consistent Emphasis on Substance Over Form in
Determining What Constitutes an Acquittal

As this Court recently reaffirmed, the ancient

right to a jury trial is no mere “procedural
formalit[y] but [rather a] fundamental reservation[]
of power to the American people.” Erlinger v. United
States, 602 U.S. 821, 832 (2024) (citation omitted).
 13

“By requiring the Executive Branch to prove its

charges to a unanimous jury beyond a reasonable
doubt, the Fifth and Sixth Amendments seek to
mitigate the risk of prosecutorial overreach and
misconduct . . . .” Id. “Prominent among the reasons
colonists cited in the Declaration of Independence for
their break with Great Britain was the fact
Parliament and the Crown had ‘depriv[ed] [them] in
many cases, of the benefits of Trial by Jury.’” Id. at
829 (quoting ¶ 20). “After securing their
independence, the founding generation sought to
ensure what happened before would not happen
again. As John Adams put it, the founders saw
representative government and trial by jury as ‘the
heart and lungs’ of liberty.” Id. (quoting Letter from
Clarendon to W. Pym (Jan. 27, 1766), in 1 Papers of
John Adams 169 (R. Taylor ed. 1977)). It follows
that a jury acquittal is entitled to the utmost respect
in our criminal justice system. See United States v.
Martin Linen Supply Co., 430 U.S. 564, 571 (1977)
(“Perhaps the most fundamental rule in the history
of double jeopardy jurisprudence has been that [a]
verdict of acquittal . . . could not be reviewed, on
error or otherwise, without putting [a defendant]
twice in jeopardy, and thereby violating the
Constitution.” (citation omitted)). The jury’s
“overriding responsibility is to stand between the
accused and a potentially arbitrary or abusive
Government that is in command of the criminal
sanction.” Id. at 572; see also Pena-Rodriguez v.
Colorado, 580 U.S. 206, 210 (2017) (“[T]he jury is a
necessary check on governmental power” and “a
tangible implementation of the principle that the law
comes from the people.”).
 14

One of the central benefits of a right to a trial

before an impartial jury is that if the jury acquits,
the sovereign cannot re-prosecute. “The Double
Jeopardy Clause provides that no person shall ‘be
subject for the same offence to be twice put in
jeopardy of life or limb.’” Blueford v. Arkansas, 566
U.S. 599, 605 (2012) (quoting U.S. Const., Amdt. 5).
The underlying idea, one that is deeply
ingrained in at least the Anglo-American
system of jurisprudence, is that the State with
all its resources and power should not be
allowed to make repeated attempts to convict
an individual for an alleged offense, thereby
subjecting h[er] to embarrassment, expense
and ordeal and compelling h[er] to live in a
continuing state of anxiety and insecurity, as
well as enhancing the possibility that even
though innocent [s]he may be found guilty.
Green v. United States, 355 U.S. 185, 187-88 (1957)
(emphasis added); see also Martin Linen, 430 U.S. at
569 (“At the heart of this policy is the concern that
permitting the sovereign freely to subject the citizen
to a second trial for the same offense would arm
Government with a potent instrument of
oppression.”); Blueford, 566 U.S. at 605 (quoting
Martin Linen).

“[W]hat constitutes an ‘acquittal’ is not to be

controlled by the form” of the action in question.
Martinez v. Illinois, 572 U.S. 833, 841-42 (2014)
(quoting Martin Linen, 430 U.S. at 571). “Rather,
[the Court] must determine whether” the action
“actually represents a resolution, correct or not, of
some or all of the factual elements of the offense
charged.” Martin Linen, 430 U.S. at 571.
 15

“[L]abels—including those provided by state law—do

not control [the] analysis . . . .” McElrath v. Georgia,
601 U.S. 87, 96 (2024) (citation omitted).

Here, the affidavits by Attorneys Jackson and

Yannetti reflect post-trial statements by four
deliberating jurors that the jury had reached a final,
unanimous conclusion that Read is not guilty of
Counts 1 and 3 (and an indirect statement by a fifth
juror that they had agreed with respect to Count 1).
A call by one juror to the prosecutor himself
corroborated the trustworthiness of these
representations. Both the trial court and the SJC,
for purposes of ruling on the Double Jeopardy issue,
“proceed[ed] from the assumption that the affidavits
[we]re accurate.” Pet. App. 79a n.14. Neither the
Commonwealth nor Respondents ever challenged the
authenticity or accuracy of the juror statements
despite many opportunities to do so. There was
nothing tentative about the jurors’ statements. To
the contrary, they were definitive in describing the
result of the jury’s deliberations. COA Joint App.
334 (“Juror A was emphatic that Count 1 (second
degree murder) was ‘off the table,’ and that all 12 of
the jurors were in agreement that she was NOT
GUILTY of such crime.”), 330 (reflecting text
message from Juror B, “It was not guilty on second
degree. . . . No one thought she hit him on purpose
or even [knew that she had hit him]”), 340 (“Juror D,
without hesitation, said in substance, Every one of
us will agree and acknowledge that we found [Karen
Read] NOT GUILTY of Counts 1 and 3. Because
that’s what happened.”), 370 (“Juror E explained
that the jury was ‘unanimous on 1 and 3’ that Karen
Read was NOT GUILTY of those charges.”). Despite
 16

significant publicity that accompanied the filing of

the defense motion relying on jury declarations, none
of the remaining jurors ever communicated to the
court, the court’s staff, the District Attorney’s office,
defense counsel, or the media that they disputed the
accuracy of the five jurors’ representations –
something likely to occur if the conclusions of a jury
were being misrepresented in the declarations of the
five jurors who were being quoted in the litigation.

The First Circuit’s rejection of Read’s claim of

acquittal is rooted in a formalism that has been
consistently rejected by this Court in a string of
precedents spanning more than one hundred years.
See supra pages 14-15 (citing cases); Ball v. United
States, 163 U.S. 662, 671 (1896) (“However it may be
in England, in this country a verdict of acquittal,
although not followed by any judgment, is a bar to a
subsequent prosecution for the same offense.”);
Hudson v. Louisiana, 450 U.S. 40, 41 & n.1 (1981)
(holding that judicial grant of new trial prohibited
retrial on Double Jeopardy grounds,
notwithstanding that the state “Code of Criminal
Procedure d[id] not authorize trial judges to enter
judgments of acquittal in jury trials”). This
emphasis of substance over form applies in the
context of both jury acquittals and judicial
acquittals. This Court has, for example,
“consistently refused to rule that jeopardy for an
offense continues after an acquittal, whether that
acquittal is express or implied by a conviction on a
lesser included offense . . . .” Price v. Georgia, 398
U.S. 323, 329 (1970) (emphasis added); see also
Green, 355 U.S. at 191 (“[W]e believe this case,”
where defendant was charged with first and second-
 17

degree murder and the jury returned a verdict

finding him guilty of the lesser offense, “can be
treated no differently, for purposes of former
jeopardy, than if the jury had returned a verdict
which expressly read: ‘We find the defendant not
guilty of murder in the first degree but guilty of
murder in the second degree.’”).

The acquittal here was the jury’s unanimous and

final decision, reflected in the post-trial affidavits,
that Read is not guilty. This Court has instructed
that “an acquittal has occurred if the factfinder acted
on its view that the prosecution had failed to prove
its case.” McElrath, 601 U.S. at 96 (citation omitted)
(emphasis added). “[I]t is not dispositive whether a
factfinder incanted the word acquit.” Id. (citation
omitted). Justice Sotomayor, joined by Justices
Ginsburg and Kagan in dissent in Blueford,
reaffirmed that, “[i]n ascertaining whether an
acquittal has occurred, form is not to be exalted over
substance. Rather, [the Court] ask[s] whether the
factfinder has made a substantive determination
that the prosecution has failed to carry its
burden. . . . Jeopardy terminates upon a
determination, however characterized, that the
evidence is insufficient to prove a defendant’s factual
guilt.” 566 U.S. at 611-12 (citations omitted).
Justice Sotomayor defined “a verdict in substance”
as “a final collective decision . . . reached after full
deliberation, consideration, and compromise among
the individual jurors.” Id. at 616 (citation omitted)
(emphasis added).

Consistent with these principles, it is not

unprecedented for a jury’s unanimous and final
 18

decision to supersede even verdict slips that fail to

accurately reflect such collective juror decisions.
Read cited two cases in which a jury’s unrecorded
vote for acquittal was given effect, notwithstanding
the jury’s failure to formally announce such verdict.
See United States v. Dotson, 817 F.2d 1127, 1129
(5th Cir. 1987) (affirming correction of verdict on one
count after “receiv[ing] a telephone call from two of
the jurors . . . stat[ing] that, contrary to the verdict
read in court, the jury had unanimously voted to
acquit”), vacated in part on other grounds; United
States v. Stauffer, 922 F.2d 508, 511 (9th Cir. 1990)
(affirming changing verdict on count where “[p]ost-
verdict interviews of several jurors . . . determined
that the jury had . . . intended to acquit”).

The Blueford majority opinion is not to the

contrary. There, the foreperson had reported during
deliberations that the jury “was unanimous against”
the charges of capital murder and first-degree
murder but split on a lesser included charge of
manslaughter. 566 U.S. at 603-04. The court sent
the jury back to continue deliberations and, when
the jury remained unable to reach a verdict, declared
a mistrial. See id. at 604. The Court rejected the
defendant’s argument that the Double Jeopardy
Clause prohibited re-prosecution for capital and
first-degree murder. In doing so, the Court relied
heavily upon the lack of finality of the juror’s report.
“[T]he jury’s deliberations had not yet concluded,”
and it “went back to the jury room to deliberate
further.” Id. at 606. “The foreperson’s report was
not a final resolution of anything,” and there was no
indication at the conclusion of deliberations that “it
was still the case that all 12 jurors believed [the
 19

defendant] was not guilty of capital or first-degree

murder.” Id. Accordingly, the foreperson’s mid-
deliberation report “lacked the finality necessary to
amount to an acquittal . . . , quite apart from any
requirement that a formal verdict be returned or
judgment entered.” Id. at 608. 3 Additionally, in
Blueford, the jury was deliberating on lesser-
included offenses within a single charge, such that,
“under Arkansas law, the jury’s options . . . were
limited to two: either convict on one of the offenses,
or acquit on all.” Id. at 610. Massachusetts law, by
contrast, expressly permits partial verdicts on
separate indictments. See, e.g., Mass. R. Crim. P.
27(b); A Juvenile v. Commonwealth, 392 Mass. 52,
55 n.1 (1984).

The First Circuit erred in finding Blueford

“dispositive” here. Pet. App. 17a. Unlike the
foreperson’s statement in Blueford, the affidavits
reflecting juror statements in this case were all
executed post-trial. The fact that, in this context,
the affidavits do not so much as hint that the
decision to acquit was non-final or revisited at any
time is a powerful indicator of finality. The jurors’
references to the “result” of deliberations and to not
guilty “verdicts” reinforce that conclusion. COA
Joint App. 334, 340, 370, 378. Unlike in Blueford,
the jury’s decision was communicated after the
conclusion of deliberations, such that there was no
possibility that it was reconsidered. In these
circumstances, the First Circuit’s conclusion that,
“even if” Read’s jury “unanimously voted in private

3 This Court made clear more than 100 years ago that the
formal entry of judgment is not required for a jury decision to
acquit to preclude retrial. See Ball, 163 U.S. at 671.
 20

that the prosecution had failed to prove its case on

Counts One and Three,” there would still be no
acquittal for Double Jeopardy purposes, Pet. App.
18a, exalts form over substance in a manner
contrary to this Court’s precedents and, Read
contends, violates the core principle of Double
Jeopardy, the prohibition on successive trials. See
Green, 355 U.S. at 187-88.

II. The First Circuit’s Ruling that Read Was Not

Entitled to Post-Trial Inquiry to Substantiate the
Fact of the Acquittals Is Inconsistent with This
Court’s Caselaw

The First Circuit also relatedly affirmed the

district court’s conclusion that “[e]ven assuming that
a post-trial voir dire elicited evidence strongly
favorable to petitioner—such as an attestation from
each juror that the jury voted unanimously to acquit
petitioner on Counts One and Three before being
discharged—her claim would still fail.” Pet. App.
55a. Under this reasoning, sworn and credible
statements by all 12 jurors attesting to a final,
unanimous decision to acquit would not be sufficient
to mount a successful Double Jeopardy challenge.
This result is not required by logic or precedent, and
it is inconsistent with this Court’s precedents arising
from other contexts. Additionally, the First Circuit
cited “concerns” about maintaining the secrecy of
jury deliberations in denying the request for post-
trial voir dire. Pet. App. 18a-19a.

In the analogous context of juror bias, the law is

clear that the defendant’s Sixth Amendment right to
an impartial jury also guarantees “the opportunity to
 21

prove” a claim of bias. Dennis v. United States, 339

U.S. 162, 171-72 (1950); see also Smith v. Phillips,
455 U.S. 209, 215 (1982) (“This Court has long held
that the remedy for allegations of juror partiality is a
hearing in which the defendant has the opportunity
to prove actual bias.”).

Post-verdict inquiry is similarly required to

investigate claims of external influence. In Remmer
v. United States, 347 U.S. 227, 228 (1954), “[a]fter
the jury had returned its verdict, the petitioner
learned for the first time that during the trial a
person unnamed had communicated with a certain
juror, who afterwards became the jury foreman, and
remarked to him that he could profit by bringing in a
verdict favorable to the petitioner.” The trial court,
without the defense’s knowledge, then enlisted the
FBI to investigate. This Court held that the
defendant was entitled to post-verdict inquiry
regarding the FBI’s unauthorized contact with
jurors.

Read submits that there is no legal or

constitutional basis to afford less rights to a
defendant seeking the ultimate benefit of her right
to a jury trial – an acquittal as found by a
unanimous jury of her peers – than those regularly
granted to defendants raising process-related
challenges, i.e., contending that their jury was not
impartial. A good faith Fifth Amendment Double
Jeopardy claim, where Read has met her burden of
production, should be entitled to no less procedural
protections as a good faith claim of juror bias. Read
acknowledges that there is little precedent involving
situations factually similar to that at issue here.
 22

This case is unique. It is not often that after trial

one juror, much less four jurors, directly contact
defense counsel stating in no uncertain terms that
the jury had acquitted the defendant. 4 But the
unique strength of the evidence underlying Read’s
motion to dismiss clearly demonstrates that she has
met her burden of production and fully supports
rather than undermines her claim for relief.

Ordering a post-trial voir dire would answer the

First Circuit’s concern that the not guilty
determinations were not final, Pet. App. 18a, and
“[t]he simple outline of § 2241[5] makes clear . . . that
Congress envisioned that habeas petitioners would
have some opportunity to present and rebut facts
. . . .” Hamdi v. Rumsfeld, 542 U.S. 507, 526 (2004).
In fact, this Court has held that “a federal [habeas]
court must grant an evidentiary hearing” where, as
here, “the merits of the factual dispute were not
resolved in the state hearing.” Townsend v. Sain,
372 U.S. 293, 313 (1963) (emphasis added). This is a
necessary corollary of the straightforward
proposition that:
where specific allegations before the [habeas]
court show reason to believe that the
petitioner may, if the facts are fully developed,
be able to demonstrate that [s]he is [in
custody] illegally and is therefore entitled to

4 But the situation is not entirely unprecedented. See

Dotson, 817 F.2d at 1129; Stauffer, 922 F.2d at 511.

5 Because, as the First Circuit acknowledged and the

parties did not dispute, Pet. App. 7a, Read’s petition was
properly brought under 28 U.S.C. § 2241, the restrictions on
fact-finding under 28 U.S.C. § 2254 did not apply. See
generally Williams v. Taylor, 529 U.S. 420 (2000).
 23

relief, it is the duty of the court to provide the

necessary facilities and procedures for an
adequate inquiry.
Harris v. Nelson, 394 U.S. 286, 300 (1969); see also
Townsend, 372 U.S. at 312 (“It is the typical, not the
rare, case in which constitutional claims turn upon
the resolution of contested factual issues. Thus a
narrow view of the hearing power would totally
subvert Congress’s specific aim . . . of affording state
prisoners a forum in the federal trial courts for the
determination of claims of detention in violation of
the Constitution.”); 28 U.S.C. § 2246 (“On
application for a writ of habeas corpus, evidence may
be taken orally or by deposition . . . .”).

The First Circuit was also wrong to deny the

request for post-trial hearing to maintain
confidentiality of “the content of jury deliberations.”
Pet. App. 19a. The results of a jury’s deliberations
are not secret. They are, in fact, routinely
announced in open court.

The inquiry requested by Read could be

accomplished by a single, or at most a small number
of, “yes” or “no” questions posed to jurors: did you
unanimously acquit Karen Read of the charges in
Counts 1 and 3?, was your decision (or did you
believe your decision to be) final as to each count?, or
similar questions that do not intrude into the heart
of jury deliberations. If all 12 jurors answer those
questions affirmatively, no speculation regarding the
basis for that unanimous conclusion could alter its
constitutional significance. See McElrath, 601 U.S.
at 97 (“We simply cannot know why the jury in [this]
 24

case acted as it did, and the Double Jeopardy Clause

forbids us to guess.”).

Prior to the enactment of Federal Rule of

Evidence 606(b), which the parties agreed was
facially inapplicable here, 6 this Court held “that the
rule against jurors’ impeaching their verdicts
applie[d] only in a proceeding actually impeaching
that verdict,” which indisputably does not describe
this case in which Read is attempting to prove that
the jury reached a verdict. Warger v. Shauers, 574
U.S. 40, 47 (2014) (citing Clark v. United States, 289
U.S. 1 (1933)). And this Court has held that, at least
in some circumstances, inquiry is required even
when (unlike in the present case) it violates Rule
606(b). See Pena-Rodriguez, 580 U.S. at 225.

In sum, the defense learned post-trial that the

jury reached a verdict that was not announced. It
was at least entitled to the opportunity to
substantiate that fact in order to ensure Read is not
unconstitutionally forced to stand trial for criminal
offenses, including murder, of which she has already
been acquitted. Such inquiry in no way intrudes on
the deliberative process of the jury. Such an inquiry
instead honors the jury service which the trial court
described as “extraordinary” rather than rendering
irrelevant the efforts of at least four jurors to
disclose that there was not an impasse on all three
counts, as contrasted to only one count. Read
contends that the Double Jeopardy Clause’s
guarantee against successive prosecutions is no less
fundamental than, e.g., the Sixth Amendment right

6 The rule applies only to juror testimony “[d]uring an

inquiry into the validity of a verdict or indictment.”
 25

to an impartial jury and no less deserving of

protection, including, whereas here a defendant
makes a persuasive and credible showing of an
unannounced acquittal, by post-trial hearing to
substantiate such acquittal.

CONCLUSION

For all the foregoing reasons, this Court should

grant Read’s petition for a writ of certiorari.

MICHAEL PABIAN MARTIN G. WEINBERG

20 Park Plaza Counsel of Record
Suite 1000 MARTIN G. WEINBERG, P.C.
Boston, MA 02116 20 Park Plaza
(617) 227-3700 Suite 1000
pabianlaw38@[Link] Boston, MA 02116
(617) 227-3700
owlmgw@[Link]

Counsel for Karen Read

APPENDIX
 APPENDIX TABLE OF CONTENTS

Page

APPENDIX A: Opinion of the United States

Court of Appeals for the First Circuit
Decided March 27, 2025 ............................... 1a

APPENDIX B: Order of the United States

District Court for the District of
Massachusetts Dated March 13, 2025......... 20a

APPENDIX C: Opinion of the Massachusetts

Supreme Judicial Court Decided February
11, 2025 ......................................................... 57a

APPENDIX D: Order of the Massachusetts

Superior Court Dated August 23, 2024 ....... 88a
 1a
APPENDIX A
2025 WL 926289
UNITED STATES COURT OF APPEALS,
FIRST CIRCUIT
————
No. 25-1257
————
KAREN READ,
Petitioner, Appellant,
v.
NORFOLK COUNTY SUPERIOR COURT;
Andrea J. Campbell, Massachusetts Attorney General,
Respondents, Appellees.
————
March 27, 2025
————
Appeal from the United States District Court
for the District of Massachusetts
[Hon. F. Dennis Saylor, IV, U.S. District Judge]
————
Attorneys and Law Firms
Martin G. Weinberg and Michael Pabian on brief for
appellant.
Caleb J. Schillinger, Special Assistant Attorney
General, Assistant Norfolk District Attorney, and
Andrea Joy Campbell, Attorney General of
Massachusetts, on brief for appellees.
Before Gelpí, Montecalvo, and Aframe, Circuit
Judges.
 2a
OPINION
MONTECALVO, Circuit Judge.
On April 16, 2024, Karen Read’s trial began in
Norfolk County Superior Court in Massachusetts on
charges of murder in the second degree, Mass. Gen.
Laws ch. 265, § 1 (Count One); manslaughter while
operating under the influence of alcohol, Mass. Gen.
Laws ch. 265, § 13 1/2 (Count Two); and leaving the
scene of personal injury resulting in death, Mass.
Gen. Laws ch. 90, § 24(2)(a 1/2)(2) (Count Three).
After thirty-seven days of trial, the charges were
submitted to the jury for deliberation. During approx-
imately twenty-eight hours of deliberations, the jury
sent three notes to the trial judge, informing the
court that the jury was increasingly deadlocked. On
July 1, 2024, after receiving the third note, the trial
judge declared a mistrial. A retrial is scheduled to
start on April 1, 2025.
After the mistrial, Read moved to dismiss Counts
One and Three on the basis that the Double Jeopardy
Clause barred retrial. The trial judge denied that
motion, and the Massachusetts Supreme Judicial Court
(SJC) affirmed.1 Read then filed a habeas petition in
federal court under 28 U.S.C. § 2241 to prevent the
state court from retrying her on those counts, arguing
that a retrial would violate her constitutional double

1
Read filed her petition to the SJC under chapter 211, section
3 of the Massachusetts General Laws, which confers upon the
SJC a “general superintendence” power that permits, among
other things, review of “interlocutory matters in criminal
cases only when substantial claims of irremediable error are
presented ... and only in exceptional circumstances, ... where it
becomes necessary to protect substantive rights.” Garcia v.
Commonwealth, 486 Mass. 341, 158 N.E.3d 452, 458 (2020)
(alterations in original) (citations omitted).
 3a
jeopardy rights. The United States District Court for
the District of Massachusetts denied her habeas
petition, and Read now appeals that decision. For the
reasons that follow, we affirm.
I. Background
We focus here only on those facts relevant to the
issues before us.
Following the close of evidence, the trial court
instructed the jury to consider each of the three
charges against Read listed above as well as two
lesser offenses that were included in Count Two: in-
voluntary manslaughter and motor vehicle homicide.
The jury began its deliberations on Tuesday, June
25, 2024, the thirty-seventh day of trial. Three days
later, on Friday, June 28, the jury sent a note to the
trial judge stating that they were “unable to reach a
unanimous verdict.” 2 The court discussed with the
parties how to respond. Read’s counsel argued that
the court should give what is called a Tuey-Rodriquez
instruction under Massachusetts law – a standard
instruction encouraging the jury to reach agreement
by seriously considering other jurors’ points of view.
Commonwealth v. Rodriquez, 364 Mass. 87, 300
N.E.2d 192, 202-03 (1973). The Commonwealth dis-
agreed, arguing that it was too soon to give such
an instruction. The court agreed with the Common-
wealth, finding that there had not yet been sufficient
time for “due and thorough deliberations.” The court
directed the jury to continue deliberating.

2
The first note reads: “I am writing to inform you, on behalf
of the jury, that despite our exhaustive review of the evidence
and our diligent consideration of all disputed evidence, we have
been unable to reach a unanimous verdict.”
 4a
In the late morning of Monday, July 1, the jury
sent a second note to the judge, explaining that they
were “commit[ted] to the duty entrusted to [them]”
but were “deeply divided by fundamental differences”
and had reached “a point where consensus [was]
unattainable.” 3 The court again discussed the jury
note and potential responses with the parties. As
they had previously, Read’s counsel argued that
the court should give the Tuey-Rodriquez instruction,
and the Commonwealth argued that it was still
too soon. This time, however, the court agreed with
Read’s counsel and gave the instruction before
directing the jury to continue deliberating.4

3
The second note reads:
Despite our commitment to the duty entrusted to us,
we find ourselves deeply divided by fundamental
differences in our opinions and state of mind.
The divergence in our views are [sic] not rooted in
a lack of understanding or effort, but deeply held
convictions that each of us carry ultimately leading
to a point where consensus is unattainable. We recog-
nize the weight of this admission and the implications
it holds.
4
In the Tuey-Rodriquez instruction, the court reminded
jurors of their “duty to decide this case if [they] can do so
conscientiously” and stated, in part:
Where there is disagreement, those jurors who would
find the defendant not guilty should consider whether
the doubt in their own minds is a reasonable one if it
makes no impression upon the minds of the other
jurors ....
At the same time, those jurors who would find the
defendant guilty ought seriously to ask themselves
whether they may not reasonably doubt the correct-
ness of their judgment if it is not shared by other
members of the jury.
 5a
Later that day, the jury sent a third note, stating
that they “continue[d] to find [them]selves at an
impasse” despite “rigorous efforts” and that
“continu[ing] to deliberate would be futile.” 5 Upon
receiving the note, the court told the parties that “the
jury is at an impasse,” and then called the jury back
into the courtroom. The judge read the note out loud
and immediately declared a mistrial, dismissing the
jury. Unlike with the prior two jury notes, the judge
did not first read the note to counsel or ask them for
input.
Read’s counsel report that shortly after trial
concluded, they were contacted by several people.
First, a juror told one of Read’s attorneys that the
jury had unanimously agreed that Read was not
guilty of Counts One and Three. A second juror called
another of Read’s attorneys and relayed the same
information. Then a third party reported to Read’s
counsel that a third juror had told a mutual friend
that there was “no consideration for [second-degree]
5
The third note reads:
Despite our rigorous efforts, we continue to find
ourselves at an impasse.
Our perspectives on the evidence are starkly divided.
Some members of the jury firmly believe that the
evidence surpasses the burden of proof[,] establishing
the elements of the charges beyond a reasonable
doubt. Convers[e]ly, others find the evidence fails
to meet this standard[ ] and does not sufficiently
establish the necessary elements of the charges.
The deep division is not due to a lack of effort or
diligence, but rather a sincere adherence to our
individual principles and moral convictions.
To continue to deliberate would be futile and only
serve to force us to compromise these deeply held
beliefs.
 6a
murder” – Count One – and that the jury was
deadlocked on the manslaughter charge – Count Two.
After Read filed a motion to dismiss based on these
reports, a fourth juror contacted her counsel to
express their view “that it was very troubling that
the entire case ended without the jury being asked
about each count, especially Count [One] and Count
[Three].” That juror added that “the jury actually
discussed telling the judge that they had agreed
unanimously on NOT GUILTY verdicts for Counts
[One] and [Three], but they were not sure if they
were allowed to say so.” Finally, a fifth juror
contacted Read’s counsel and informed them that the
jury was “unanimous” that Read was not guilty on
Counts One and Three and was “deadlocked” only “in
relation to the ‘lower charges’ on Count [Two].”
The Commonwealth likewise received communica-
tions from individuals identifying themselves as
jurors after Read filed her motion to dismiss. One left
a voicemail stating, “it is true what has come out
recently about the jury being unanimous on [Counts
One and Three].” Three individuals sent emails to
the Commonwealth, expressing that they wished to
speak anonymously. They later declined to communi-
cate further once the Commonwealth informed them
that it could not promise confidentiality.
The trial court denied Read’s motion to dismiss,
holding that double jeopardy did not bar Read’s
retrial on Counts One and Three and that conducting
a post-trial inquiry with the jurors would impermissi-
bly delve into the substance of jury deliberations.
Read appealed but the SJC affirmed, holding that the
trial court had acted within its discretion in declaring
a mistrial and that no acquittal had occurred because
the jury had not publicly affirmed that Read was not
 7a
guilty of the charges. Read v. Commonwealth, 495
Mass. 312, 250 N.E.3d 551, 559, 565-66 (2025). Read
then petitioned for habeas relief before the district
court, which also rejected her arguments that double
jeopardy should preclude her retrial and declined to
order or conduct a post-trial hearing. Read v. Norfolk
Cnty. Super. Ct., No. 25-cv-10399, 2025 WL 815048,
at *1, 15 (D. Mass. Mar. 13, 2025). We now consider
her arguments to this court.
II. Standard of Review and Legal Issues
A federal court may grant a writ of habeas corpus
to a person who is “in custody” in violation of the
Constitution or federal laws. 28 U.S.C. § 2241(a),
(c)(3); see also Justs. of Bos. Mun. Ct. v. Lydon, 466
U.S. 294, 300-01, 104 [Link]. 1805, 80 [Link].2d 311
(1984) (holding that a person on pretrial release
is considered to be “in custody” for the purposes of
habeas relief). “[W]e, as a federal habeas court
reviewing a petition under section 2241, must defer
to the SJC’s findings of fact but must undertake
plenary review of that court’s resolution of issues
of law.” Marshall v. Bristol Super. Ct., 753 F.3d 10,
16 (1st Cir. 2014) (alteration in original) (quoting
Gonzalez v. Justs. of Mun. Ct. of Bos., 382 F.3d 1, 7
(1st Cir. 2004), judgment vacated on other grounds,
544 U.S. 918, 125 [Link]. 1640, 161 [Link].2d 474 (2005),
and reinstated, 420 F.3d 5 (1st Cir. 2005)). “We
review a district court’s disposition of a section 2241
petition de novo.” Id.
The issues before us all stem from Read’s claim
that the Constitution’s Double Jeopardy Clause bars
her retrial for Counts One and Three. The Double
Jeopardy Clause provides that “[n]o person shall ...
be subject for the same offence to be twice put in
jeopardy of life or limb.” U.S. Const. amend. V;
 8a
see also Benton v. Maryland, 395 U.S. 784, 794, 89
[Link]. 2056, 23 [Link].2d 707 (1969) (applying the
Double Jeopardy Clause to the States through the
Fourteenth Amendment). To succeed on a double
jeopardy challenge, the defendant must show that
(1) jeopardy attached in the original state court
proceeding and (2) “the state court terminated jeop-
ardy in a way that prevents reprosecution.” Gonzalez,
382 F.3d at 8.
In this case, there is no dispute that jeopardy
attached when the jury was empaneled and sworn.
See Martinez v. Illinois, 572 U.S. 833, 839, 134 [Link].
2070, 188 [Link].2d 1112 (2014) (per curiam). Rather,
the question is whether the court terminated
jeopardy (i.e., whether the trial ended) in a way that
prevents a second trial. Read offers two alternative
arguments: first, that the court erred because there
was no “manifest necessity” to declare a mistrial on
two counts and, second, that the jury effectively
acquitted her on those two counts.
III. Discussion
A. Manifest Necessity
We begin by summarizing the legal principles
relevant to Read’s “manifest necessity” claim. Under
our constitutional framework, a defendant generally
may not be retried for a charge if, after trial begins,
the court discharges the jury without the defendant’s
consent. United States v. Ramirez, 884 F.2d 1524,
1528 (1st Cir. 1989). This stems from a defendant’s
“valued right to have [her] trial completed by a
particular tribunal.” Id. (quoting Wade v. Hunter, 336
U.S. 684, 689, 69 [Link]. 834, 93 [Link]. 974 (1949)). But
this right “is not absolute; it is subject to the rule of
‘manifest necessity.’” Id. (quoting United States v.
 9a
Perez, 22 U.S. 579, 580, 9 Wheat. 579, 6 [Link]. 165
(1824)).
Under the doctrine of manifest necessity, trial
judges may not foreclose the defendant’s right to
have that particular jury reach a verdict “until a
scrupulous exercise of judicial discretion leads to the
conclusion that the ends of public justice would not
be served by a continuation of the proceedings.” Id.
(quoting United States v. Jorn, 400 U.S. 470, 485, 91
[Link]. 547, 27 [Link].2d 543 (1971)). The Supreme
Court has defined “manifest necessity” as meaning a
“high degree” of necessity. Renico v. Lett, 559 U.S.
766, 774, 130 [Link]. 1855, 176 [Link].2d 678 (2010)
(quoting Arizona v. Washington, 434 U.S. 497, 506,
98 [Link]. 824, 54 [Link].2d 717 (1978)). A deadlocked
jury is the “classic example” of a situation where
declaring a mistrial is manifestly necessary. Id.
(quoting Downum v. United States, 372 U.S. 734, 736,
83 [Link]. 1033, 10 [Link].2d 100 (1963)). The govern-
ment may then retry the defendant for the charge, or
charges, on which the jury deadlocked. Id.
Relatedly, while a trial court’s decision to declare a
mistrial based on “manifest necessity” is “accorded
great deference,” that deference does not “end the
inquiry” and can be overcome. Washington, 434 U.S.
at 510, 514, 98 [Link]. 824. Because the decision affects
a defendant’s constitutionally protected interest “to
conclude [her] confrontation with society through the
verdict of a tribunal [she] might believe to be
favorably disposed to [her] fate,” id. at 514, 98 [Link].
824 (quoting Jorn, 400 U.S. at 486, 91 [Link]. 547),
“reviewing courts have an obligation to satisfy
themselves that ... the trial judge exercised ‘sound
discretion’ in declaring a mistrial,” id. For example, a
trial court has not exercised “sound discretion” if it
 10a
“acts irrationally or irresponsibly,” id., or “for reasons
completely unrelated to the trial problem which
purports to be the basis for the mistrial ruling,” id. at
510 n.28, 98 [Link]. 824.
Read argues that the trial judge made a
“precipitous decision” in declaring a mistrial,
emphasizing that only two minutes passed between
the trial court announcing that it had received a
third jury note – by stating, “the jury is at an
impasse” – and discharging the jury. Read also
argues that the record suggests that the court did not
consider alternatives to declaring a mistrial or even
discuss the possibility of a mistrial with the parties.
In response, the Commonwealth counsels that we
take a broader view of the relevant timeline. It
argues that the trial court took careful steps
throughout deliberations in responding to the jury’s
notes and only declared a mistrial when it was clear,
after the third such note, that the jury was truly
deadlocked. The Commonwealth further argues that
federal courts have never required a trial court to
take any particular steps when confronted with a
deadlocked jury and that the judge exercised sound
discretion under these circumstances. In addition,
the Commonwealth argues that, contrary to Read’s
suggestion, the trial judge was not required to ask
the jury about a partial verdict or poll individual
jurors, as doing so may have improperly risked
coercing a verdict.
In determining whether the declaration of a
mistrial reflected a trial judge’s sound discretion and
was “reasonably necessary under all the circum-
stances,” we consider “whether the district court
explored other options, gave counsel the opportunity
to object, and acted ‘after sufficient reflection.’”
 11a
United States v. Candelario-Santana, 977 F.3d 146,
158 (1st Cir. 2020) (quoting United States v. Toribio-
Lugo, 376 F.3d 33, 39 (1st Cir. 2004)); see also Brady
v. Samaha, 667 F.2d 224, 229 (1st Cir. 1981) (stating
that whether the “record indicates [the judge] has
considered alternatives to a mistrial is significant,”
as is “affording counsel an opportunity to be heard on
the subject”). Among other factors, the amount of
time that the judge takes with the mistrial decision is
relevant: “A precipitate decision, reflected by a rapid
sequence of events culminating in a declaration of
mistrial, would tend to indicate insufficient concern
for the defendant’s constitutional protection.” Brady,
667 F.2d at 229. But there is no “mechanical rule”
or set of “specific steps” that a trial court must
follow before declaring a mistrial due to deadlock.
Candelario-Santana, 977 F.3d at 158. Rather, the
court must only take “some step” to ensure the jury is
actually deadlocked. Id.
We agree with the Commonwealth and the district
court that we must consider the trial court’s actions
throughout jury deliberations and not limit our
review solely to the court’s response to the third jury
note. See Read, 2025 WL 815048, at *8. Thus, we
return to the judge’s actions during that period.
Recall that the trial judge received the first jury
note about its difficulty in reaching a unanimous
verdict after the jury had been deliberating for
around nineteen hours. See id. at *1. Upon receiving
the note, the trial judge shared it with counsel and
heard their arguments on how to respond. As dis-
cussed, Read’s counsel urged the judge to give a
Tuey-Rodriquez instruction, arguing that the jurors
had “exhausted all manner of compromise” and were
“at an impasse.” In other words, Read’s counsel
 12a
encouraged the court to find that the jury had failed
to reach a unanimous verdict following “due and
thorough” deliberations. See Commonwealth v. Jenkins,
416 Mass. 736, 625 N.E.2d 1344, 1345 (1994) (hold-
ing that “the giving of a [Tuey-Rodriquez] charge”
generally reflects a conclusion by the court that “the
jury’s deliberations were ‘due and thorough’” within
the meaning of then-applicable Mass. Gen. Laws
ch. 234, § 34). This is particularly relevant because,
under Massachusetts law, once a “jury, after due
and thorough deliberation, returns to court without
having agreed on a verdict” and is sent back out for
further deliberation, but then returns to once again
report a deadlock, the court cannot require them to
continue deliberating unless the jury consents. Mass.
Gen. Laws ch. 234A, § 68C. However, after the first
note, the court declined to give the instruction and
sent the jury back to keep deliberating because it
concluded that there had not yet been sufficient time
for the jury to have engaged in “due and thorough
deliberations.”
After the second jury note, Read’s counsel pressed
a second time for the Tuey-Rodriquez instruction,
arguing that the jury was “hopelessly deadlocked.”
The Commonwealth again argued it was premature,
but the judge found that enough time had elapsed to
conclude that the jury’s deliberations were “due and
thorough,” and thus proceeded to give the instruction.
It was only after the jury’s third report of deadlock,
when the court was statutorily precluded from
ordering the jury to continue deliberations without
their consent, that the trial court declared a mistrial.
Mass. Gen. Laws ch. 234A, § 68C; Read, 250 N.E.3d
at 560.
 13a
Considering the court’s actions throughout jury
deliberations, we find that the record, read as a
whole, reflects only that the court acted diligently to
avoid a mistrial. After the first note, and after
consulting with the parties, it declined to give the
Tuey-Rodriquez instruction and sent the jury back to
deliberate. After the second note, the judge again
consulted with counsel before concluding that the
jury had engaged in “due and thorough deliberations”
such that it was appropriate to give the instruction.
The court then received a note in which the jury
made clear not only that unanimity remained unob-
tainable, but also implied that the jury would not
consent to further deliberations because such delib-
erations “would be futile” and “only serve to force [the
jurors] to compromise [their] deeply held beliefs.”
Without that consent, the court would have been
bound by statute – the constitutionality of which
Read does not challenge – from compelling the jury
to continue deliberating. Mass. Gen. Laws ch. 234A,
§ 68C. While we agree there is force to the SJC’s view
that “the more prudent course” may have been to
read the third note to counsel and allow them to
weigh in, as the judge had done upon receiving the
prior two notes, the court’s decision not to do so with
the third note was within its discretion, particularly
when faced with the circumstances described above.
Read, 250 N.E.3d at 563.
Read further argues, with the benefit of hindsight
and the post-trial statements from some jurors,
that the trial court should have considered, as an
alternative to declaring a mistrial, asking the jury to
specify on which charges it faced deadlock or if its
final note related to some or all of the charges. But
our point of reference is the court’s knowledge at the
time it declared the mistrial. See Washington, 434
 14a
U.S. at 506, 98 [Link]. 824 (A reviewing court must
consider “the particular problem confronting the
trial judge.”); see also United States v. Elliot, 463 F.3d
858, 864 (9th Cir. 2006) (“A reviewing court must
determine whether such a manifest necessity existed
at the time a mistrial was declared by the district
court.”); United States v. Cameron, 953 F.2d 240,
244 (6th Cir. 1992) (same). We cannot say that a
“clear alternative,” Toribio-Lugo, 376 F.3d at 39, was
available to the court at the time of its decision, for
the following reasons.
At that time, the only juror statements that the
court had were the jury notes in front of it. The notes
stated that the jury was “unable to reach a unani-
mous verdict” (first note); that the jury was “deeply
divided by fundamental differences in [their] opinions
and state of mind” and that “consensus [was]
unattainable” (second note); and that the jurors’
perspectives were “starkly divided,” with some
believing the evidence “establish[ed] the elements of
the charges beyond a reasonable doubt” and others
finding the evidence “[did] not sufficiently establish
the necessary elements of the charges” (third note).
(Emphases added). The emphasized portions were
the only time that the charges were mentioned, and
the jury notes contained no indication that the jury
might have reached unanimous agreement on any
individual count.
Read now argues that the court should have
considered that “charges” might refer only to the
lesser-included offenses embedded within Count Two,
and, accordingly, the court should have inquired
into the possibility of a partial verdict pursuant to
Massachusetts Rule of Criminal Procedure 27(b).
Mass. R. Crim. P. 27(b) (providing that the court
 15a
“may first require the jury to return verdicts on ...
charges upon which the jury can agree” before
“declar[ing] a mistrial as to any charges upon which
the jury cannot agree”). But the interpretation of the
notes that Read now advances only seems plausible
in light of the post-trial statements that did not exist
and were therefore unavailable to the court when it
had to make its decision. On their face, the notes
appear to make a series of definite assertions that the
jury could not reach any unanimous verdict. Thus,
while it would have been within the court’s discretion
under Massachusetts Rule of Criminal Procedure
27(b) to inquire into the existence of a partial verdict,
there was no apparent need to do so here. Nor was
this alternative proposed by Read’s counsel during
the two opportunities counsel was given to consult
with the court regarding the jury’s reported deadlock
or upon learning that the jury had returned to report
an impasse for the third time.6 It follows that at the
time of the court’s decision, considering the infor-
mation the court had before it, there was no readily
apparent alternative to declaring a mistrial. For
these reasons, we are satisfied that the trial court
exercised “sound discretion” in declaring a mistrial.7
See Washington, 434 U.S. at 514, 98 [Link]. 824.

6
We note that there is nothing in the third note that changes
the calculus. Indeed, the third note – which says that the jury
remained divided on the “charges” – is the note that is most
facially inconsistent with the possibility of there being a partial
verdict.
7
Given our conclusion that the trial court exercised sound
discretion in granting a mistrial, we need not address the
Commonwealth’s alternative argument that Read’s counsel
impliedly consented to a mistrial.
 16a
B. Post-Trial Statements
Next, Read argues that several jurors’ post-trial
statements establish that the jury actually acquitted
her on two counts, such that she may not be re-
prosecuted on those counts. As an alternative
remedy, she requests a hearing to ask the original
jurors whether they acquitted her on Counts One and
Three.
1. Whether an Acquittal Occurred
“[A] verdict of acquittal is final, ending a defend-
ant’s jeopardy, and ... bar[ring] a subsequent pro-
secution for the same offence.” McElrath v. Georgia,
601 U.S. 87, 94, 144 [Link]. 651, 217 [Link].2d 419
(2024) (quoting Green v. United States, 355 U.S. 184,
188, 78 [Link]. 221, 2 [Link].2d 199 (1957)). “[W]hether
an acquittal has occurred for purposes of the Double
Jeopardy Clause is a question of federal, not state,
law.” Id. at 96, 144 [Link]. 651.
Under the Double Jeopardy Clause, an “acquittal ...
encompass[es] any ruling that the prosecution’s proof
is insufficient to establish criminal liability for an
offense.” Id. at 94, 144 [Link]. 651 (quoting Evans v.
Michigan, 568 U.S. 313, 318, 133 [Link]. 1069, 185
[Link].2d 124 (2013)). “[A]n acquittal has occurred if
the factfinder ‘acted on its view that the prosecution
had failed to prove its case.’” Id. at 96, 144 [Link]. 651
(quoting Evans, 568 U.S. at 325, 133 [Link]. 1069). In
deciding whether a defendant was acquitted, we
“focus on substance over labels,” and “look to whether
the ruling’s substance relates to the ultimate ques-
tion of guilt or innocence.” Id. at 94, 96, 144 [Link]. 651
(cleaned up) (quoting United States v. Scott, 437 U.S.
82, 98 n.11, 98 [Link]. 2187, 57 [Link].2d 65 (1978)). In
addition to a jury’s formal verdict, a ruling that
 17a
precludes retrial can include, for example, a judge’s
order granting a motion of acquittal, even if that
order is mistaken or based on legal error. See, e.g.,
Smith v. Massachusetts, 543 U.S. 462, 467-69, 125
[Link]. 1129, 160 [Link].2d 914 (2005); United States v.
Martin Linen Supply Co., 430 U.S. 564, 571-72, 97
[Link]. 1349, 51 [Link].2d 642 (1977).
Read argues that there was an acquittal because
“[t]he ‘ruling’ here was the jury’s unanimous and
final decision, reflected in the post-trial affidavits,
that Read is not guilty.” She offers no case law that
directly supports her argument. Instead, she points
to cases where the jury returned a verdict, and the
verdict form was later amended to fix an error. See
United States v. Dotson, 817 F.2d 1127, 1129 (5th
Cir.), vacated in part on other grounds, 821 F.2d 1034
(5th Cir. 1987); United States v. Stauffer, 922 F.2d
508, 511 (9th Cir. 1990).
The Commonwealth counters that there was no
valid jury verdict here under Massachusetts law.
In particular, the Commonwealth emphasizes that
under state law, “a criminal verdict is effective only
when affirmed by jurors in open court.” (Quoting
Read, 250 N.E.3d at 565). The Commonwealth also
notes that federal law accords with this principle.
See, e.g., Blueford v. Arkansas, 566 U.S. 599, 601, 132
[Link]. 2044, 182 [Link].2d 937 (2012).
Here, binding precedent is dispositive. In Blueford
v. Arkansas, the Supreme Court considered whether
an acquittal had occurred where, before a mistrial
was declared, the jury foreperson reported in open
court that the jury had voted unanimously against
guilt on two of four charges but then returned to
deliberating. 566 U.S. at 601, 610, 132 [Link]. 2044.
The Court held that the defendant was not acquitted
 18a
of those two charges based on the possibility that
jurors could have changed their minds during the
time they continued deliberating but before a mistrial
was declared. Id. at 606-08, 132 [Link]. 2044. In other
words, even where the jury foreperson had reported
in court a unanimous vote to acquit on two charges,
that was insufficient because deliberations were
ongoing and the verdict was not final. See id.
Read’s evidence is far weaker than the facts in
Blueford. The statements here do not describe when
any votes were taken or whether such votes were
preliminary or formal. Like Blueford, there is no sign
that a final vote was taken, meaning that if any
deliberations continued after a vote, jurors could
have changed their minds. See id. at 606, 608, 132
[Link]. 2044. Nor did the jury announce its verdict in
open court. Cf. id. at 603-04, 132 [Link]. 2044. Instead,
the only communications the jury made were about
its inability to reach a consensus. Therefore, even if
we assume that the jury unanimously voted in
private that the prosecution had failed to prove its
case on Counts One and Three, the jury did not “act[ ]
on [that] view.” McElrath, 601 U.S. at 96, 144 [Link].
651 (quoting Evans, 568 U.S. at 325, 133 [Link]. 1069).
There was simply no act here that could be con-
sidered a “ruling” or characterized as an acquittal.
2. Post-Trial Hearing
Read requests a post-trial hearing to question the
original jurors as to whether they acquitted her on
Counts One and Three during their deliberations.
But on the facts here, we agree with the district court
that there was no final “ruling” of acquittal that
would trigger double jeopardy concerns such that
post-trial inquiry of the jurors would be appropriate.
See Read, 2025 WL 815048, at *11. We also share the
 19a
district court’s concerns about conducting such a
hearing. Typically, the content of jury deliberations is
kept secret to enable jurors to discuss their views
freely and frankly and to protect them from
harassment. See Tanner v. United States, 483 U.S.
107, 120, 107 [Link]. 2739, 97 [Link].2d 90 (1987).
The district court found that these concerns – the
“freedom of juror deliberations and the protection of
jurors against harassment” – were “unquestionably
implicated” in this case. Read, 2025 WL 815048, at
*15. We agree with the district court that such a
hearing would not be appropriate here.
IV. Conclusion
The district court’s decision is affirmed. Read’s
motion to stay the state court proceedings pending
appeal is denied as moot.
 20a
APPENDIX B
2025 WL 815048
————
UNITED STATES DISTRICT COURT,
D. MASSACHUSETTS
————
Civil Action No. 25-cv-10399-FDS
————
KAREN READ,
Petitioner,
v.
NORFOLK COUNTY SUPERIOR COURT and
Massachusetts Attorney General,
Respondents.
————
Signed March 13, 2025
————
Attorneys and Law Firms
Martin G. Weinberg, Martin G. Weinberg, PC,
Boston, MA, Michael Pabian, Michael Pabian Law
Office, LLC, Boston, MA, for Petitioner.
Caleb J. Schillinger, Norfolk District Attorney’s
Office, Canton, MA, Thomas E. Bocian, Office of the
Attorney General, Boston, MA, for Respondent
Norfolk County Superior Court.
Thomas E. Bocian, Office of the Attorney General,
Boston, MA, for Respondent Massachusetts Attorney
General.
 21a
MEMORANDUM AND ORDER ON
PETITION FOR WRIT OF HABEAS CORPUS
SAYLOR, Chief Judge
This is a petition for writ of habeas corpus under
28 U.S.C. § 2241. Petitioner Karen Read is under
indictment in the Massachusetts Superior Court for
second-degree murder and two other charges. She
was tried on those charges beginning on April 16,
2024. On July 1, 2024, after the jury reported that it
was deadlocked, the trial judge declared a mistrial.
Petitioner moved in the Superior Court to dismiss
two of the three charges on the ground that the
Double Jeopardy Clause barred a retrial of those
charges. The Superior Court denied that motion, and
petitioner appealed that ruling to the Massachusetts
Supreme Judicial Court. The SJC affirmed the
Superior Court by a unanimous vote. Petitioner then
filed this habeas petition. The retrial is scheduled to
commence in the Superior Court on April 1, 2025.
The issues presented by the petition are limited to
those arising under the federal Constitution—
specifically, whether a retrial would constitute double
jeopardy in violation of petitioner’s rights under the
Fifth and Fourteenth Amendments. For the reasons
set forth below, the petition will be denied.
I. Background
A. 2024 Trial
On June 9, 2022, the Commonwealth of
Massachusetts charged petitioner Karen Read with
second-degree murder, in violation of Mass. Gen.
Laws ch. 265, § 1 (Count One); manslaughter while
operating under the influence of alcohol, in violation
of Mass. Gen. Laws ch. 265, § 131/2 (Count Two); and
 22a
leaving the scene of a collision resulting in death, in
violation of Mass. Gen. Laws ch. 90, § 24(2)(a1/2)(2)
(Count Three). See Read v. Commonwealth, 495
Mass. 312, 314 (2025).
A jury trial began in Norfolk County Superior
Court on April 16, 2024, and lasted more than two
months. See id. At the close of evidence, the jury
received instructions concerning the three charged
offenses, as well as two lesser-included offenses in
Count Two: involuntary manslaughter and motor
vehicle homicide. See id.
As part of its instructions, the trial judge indicated
that the jury would receive separate verdict slips for
each of the three charges. See id. The foreperson was
directed to check the appropriate boxes as to each
charge and to notify the court once the jury had
reached a unanimous verdict. See id. The trial judge
further instructed the jurors to “continue deliberating
until [they] ha[d] reached a final verdict on each
charge” and not to disclose their progress or standing
as to any charge until they had reached a unanimous
verdict. See id.
On the jury’s third day of deliberations, the
foreperson delivered a note to the court. See id. At
that point, the jury had been deliberating for
approximately 19 hours. In its entirety, the note said:
I am writing to inform you, on behalf of the
jury, that despite our exhaustive review of
the evidence and our diligent consideration
of all disputed evidence, we have been
unable to reach a unanimous verdict.
See id.
 23a
The court read the note into the record, and then
invited argument from the parties as to whether it
should issue a TueyRodriguez charge (which is
the Massachusetts equivalent of the federal Allen
charge). See id. at 315; see also Commonwealth v.
Rodriguez, 364 Mass. 87, 101-02 (1973); Common-
wealth v. Tuey, 8 Cush. 1, 2-3 (1851); Allen v. United
States, 164 U.S. 492 (1896). Such an instruction is
designed to “urge the jury to reach a verdict by giving
more serious consideration to opposing points of
view” when the jury is deadlocked after “due and
thorough deliberations.” Commonwealth v. Carnes,
457 Mass. 812, 827 (2010); Mass. Gen. Laws ch.
234A, § 68C.
The Commonwealth opposed issuing the in-
struction. Counsel for petitioner, however, asserted
that the jury’s use of the terms “impasse” and
“exhaustive” indicated that the jury’s deliberations
had been sufficiently “due and thorough,” and thus
warranted the instruction. See Read, 495 Mass. at
315. Given the length of the trial, the volume of
evidence presented, and the complexity of the issues,
the trial judge determined that “due and thorough”
deliberations had not yet been completed, and thus
the instruction was not appropriate at that time.
See id.
At around 10:45 a.m. on the following Monday,
July 1, 2024, the foreperson submitted a second note
to the court. See id. By that point, the jury had
deliberated for approximately 25 hours. The second
note stated:
Despite our commitment to the duty en-
trusted to us, we find ourselves deeply
divided by fundamental differences in our
opinions and state of mind.
 24a
The divergence in our views are not rooted
in a lack of understanding or effort, but
deeply held convictions that each of us carry
ultimately leading to a point where consen-
sus is unattainable.
We recognize the weight of this admission
and the implications it holds.
See id. After soliciting further argument from the
parties, the trial judge determined that a Tuey-
Rodriguez instruction was appropriate at that point.
The court noted that it had “never seen a note like
this [from a jury] reporting to be at an impasse.”
Id. at 316. The instruction was given to the jurors,
who then returned to the jury room for further
deliberations. See id.
Later that day, at around 2:30 p.m., the foreperson
delivered a third note to the court. See id. By that
point, the jury had deliberated for nearly 30 hours in
total. The third note stated:
Despite our rigorous efforts, we continue to find
ourselves at an impasse.
Our perspectives on the evidence are starkly
divided. Some members of the jury firmly
believe that the evidence surpasses the
burden of proof establishing the elements
of the charges beyond a reasonable doubt.
Conversely, others find the evidence fails to
meet this standard, and does not sufficiently
establish the necessary elements of the
charges.
The deep division is not due to a lack of
effort or diligence, but rather a sincere
 25a
adherence to our individual principles and
moral convictions.
To continue to deliberate would be futile and
only serve to force us to compromise these
deeply held beliefs.
See id.
The court read the note into the record before the
parties, directed that the jury be brought back into
the courtroom, and declared a mistrial. See id. The
court then discharged the jury and discussed setting
a future status conference with the parties. See id.
Petitioner’s counsel did not object to the court’s
declaration of a mistrial at any time during that
discussion or ask to be heard on that topic. See id.
B. Post-Trial Events
On July 2, 2024, one day after the trial concluded,
“Juror A” contacted one of petitioner’s counsel to
inform him that the jury had agreed the defendant
was not guilty of either Count One or Three. See id.
The following day, July 3, a person who was not a
member of the jury sent petitioner’s counsel
screenshots of text messages from “Juror B” saying,
among other things, “It was not guilty on second
degree. And split in half for the second charge.” Id. at
317.1 Another person, not a member of the jury, sent

1
According to the affidavit of petitioner’s counsel, the text
read, “It was not guilty on second degree. And split in half for
the second charge. When the judge sent us back with that
Hernandez thing to look at the other side it turned into a bully
match. I thought the prosecution didn’t prove the case. No one
thought she hit him on purpose or even thought she hit him on
purpose [sic].” (Pet. Ex. A at 283). Juror B later affirmed the
content of these messages directly to petitioner’s counsel. (Id. at
330).
 26a
petitioner’s counsel screenshots of text messages
summarizing a conversation “Juror C” had with
friends about deliberations. See id. According to this
intermediary, “manslaughter started polling at 6/6
then ended deadlock @4no8yes.” Id. 2 Several days
later, “Juror D” contacted petitioner’s counsel to
explain that the jury’s deadlock related only to Count
Two and its lesser included offenses. See id. “Juror
E,” similarly, contacted petitioner’s counsel to explain
that the jury had been deadlocked only on the “lower
charges on count 2.” Id.
Based on a subset of those statements, petitioner
filed a motion to dismiss Counts One and Three on
July 8, 2024, one week after the declaration of a
mistrial. See id. In substance, petitioner argued that
the jurors’ post-trial statements demonstrated that
the jury had effectively acquitted her as to those
counts, rendering a potential retrial unconstitutional.
See id. She further contended that the declaration of
a mistrial was improper as to those two counts and
that the court, at a minimum, should conduct a post-
verdict inquiry to verify the subsequent accounts of
the deliberations. See id.
After petitioner’s counsel attested to the juror
communications as a part of petitioner’s motion to
dismiss, the Commonwealth also received commu-
nications from several jurors. See id. at 318. One
juror left the prosecutor two voicemails stating
that the jury had voted not guilty on Counts One
and Three and had voted “9-3 guilty on the lower

2
According to the affidavit of petitioner’s counsel, the
summary also stated, “no consideration for murder 2.” Upon
questioning, the intermediary further stated, “the remaining
charges were what they were hung on.” (Pet. Ex. A at 285).
 27a
manslaughter charges.” Id. 3 Three other jurors
e-mailed the prosecutor asking to speak about delib-
erations anonymously, but declined to do so after
they were informed that the Commonwealth might
have to disclose what they said to petitioner’s counsel
or the court. See id.
After hearing argument, the trial court denied the
motion to dismiss Counts One and Three. The court
stated that there had been “no open and public
verdict affirmed in the open court” acquitting peti-
tioner of any of the charges. Id. The court also
rejected petitioner’s contention that declaration of
a mistrial was inappropriate, noting that petitioner
had herself twice requested a Tuey-Rodriguez
instruction—which is typically the last step before a
mistrial—and at no point objected to or sought to
opine on the court’s mistrial declaration. See id.
In light of the jury’s multiple notes indicating a
deadlock, the court concluded that a mistrial was
necessary and appropriate. See id.
C. SJC Appeal
On September 11, 2024, petitioner filed a petition
to the Supreme Judicial Court of Massachusetts
(“SJC”). On February 11, 2025, the SJC affirmed the
trial court’s denial of the motion to dismiss. See id. at
314.
The SJC first held that the trial court properly
acted within its discretion to determine that the
jury was at an impasse and that a mistrial was
“manifestly necessary.” Id. at 320. It based that
conclusion primarily on the jury’s “increasingly
3
According to the Commonwealth, those messages came on
August 1, one month after the jury was discharged. (Pet. Ex. A
at 325).
 28a
emphatic notes,” some of which “echo[ed] language
from other cases where [the SJC] ha[s] characterized
a jury’s report of deadlock as ‘unambiguous.’” Id. It
went on to reject petitioner’s contention that no
“manifest necessity” had been established because
the trial judge failed to adequately consider alterna-
tives to mistrial. See id. at 321. According to the SJC,
the judge “did consider and pursue such alternatives”
by taking a measured and iterated approach to
breaking the deadlock. Id.
The SJC specifically rejected petitioner’s other
proposed alternatives, including inquiring about a
partial verdict or polling the jury. See id. at 321-25. It
found that while Mass. R. Crim. P. 27(d) allows a
trial judge to inquire about a partial verdict, “a judge
is not required to accept a partial verdict before
declaring a mistrial, ... and is prohibited from doing
so on a single indictment that contains lesser
included offenses,” such as Count Two here. Id. at
321. The court gave great weight to the fact that “the
record before the trial judge suggested complete
deadlock” where “[t]he first and second notes pro-
vided no indication of a partial consensus, and the
third note plainly implied the opposite.” Id. at 322. It
also emphasized that “these notes indicated that
additional inquiry into the jury’s deliberations risked
producing a coerced verdict.” Id. at 322-25.
The SJC also rejected petitioner’s claim that the
trial judge abused her discretion by declaring a
mistrial without notifying defense counsel of the
third note’s contents and without allowing them to
express their views. See id. at 325-26. It found that
“there [was] no indication that inviting defense
counsel to participate in a third round of consultation
 29a
would have produced any fruitful alternatives” to
mistrial. Id. at 325.
The SJC then held that “because the jury did not
publicly affirm that [petitioner] was not guilty of
[Counts 1 and 3], there was no acquittal barring
retrial under the double jeopardy clause.” Id. at 329-
30. It relied on the fact that, under Mass. R. Crim. P.
27(a), the jury had not returned a valid verdict; only
“the actual return, receipt, and recording of a verdict
... constitutes a final verdict[.]” Id. at 327-28. The
court reasoned that absent these conditions, it
“cannot conclude that the jury acted on their view
that the prosecution had failed to prove its case,” as
required to establish acquittal under McElrath v.
Georgia, 601 U.S. 87 (2024). Id. at 328. It rejected
petitioner’s contention that the formalities of valid
verdicts should not prevent the acquittal votes from
taking effect. See id. at 329-30. According to the
court, “requiring a jury to publicly affirm their
verdict in open court ... serves a vital purpose—it
ensures that the verdict agreed upon in private truly
reflects the unanimous and deliberate judgment of
each juror.” Id. at 329.
The SJC then went on to hold that the trial
judge did not abuse her discretion in denying the
petitioner’s request for post-trial inquiry. See id. at
332. It found that because no verdict was announced
as required, a post-trial voir dire “would not change
the outcome of defendant’s first trial.” Id. The court
reasoned that petitioner was not entitled to this
inquiry because the jurors’ affidavits “do not indicate
exposure to extraneous matters or juror bias,” and
because “there [was] no suggestion that jury’s failure
to return a verdict was the result of a clerical error.”
Id. at 330-31. The inquiry would therefore in-
 30a
appropriately require “probing the content of juror
deliberations” and would do so “well after they
became susceptible to outside influences.” Id. at
331-32.
In the meantime, the trial judge set the matter for
a retrial beginning on April 1, 2025. See id. at 332.
D. Procedural History
On February 18, 2025, petitioner filed a petition for
a writ of habeas corpus under 28 U.S.C. § 2241 in
this Court. That same day, the Court issued an
expedited briefing and hearing schedule in light of
the imminent retrial date. Defendants submitted an
opposition brief on February 26, 2025, and the Court
heard oral arguments on March 5, 2025.
For the following reasons, the petition will be
denied.
II. Analysis
There are two threshold questions that the Court
must address before turning to the merits of the
claim: whether it has jurisdiction to consider the
habeas petition and, if so, whether it must abstain
from doing so.
A. Jurisdiction and Ripeness
A United States District Court may issue a writ of
habeas corpus for a person “in custody in violation of
the Constitution or laws or treaties of the United
States.” 28 U.S.C. § 2241(a), (c)(3). A person on pre-
trial release is considered to be “in custody” and may
petition for habeas relief if that custody violates
federal law. See Justs. of Bos. Mun. Ct. v. Lydon, 466
U.S. 294, 300 (1984). Ordinarily, a person “in
custody” is “in custody pursuant to the judgment of a
State court” or “in custody under sentence of a court
 31a
established by Act of Congress.” 28 U.S.C. §§ 2254(a),
2255(a). Because a person on pretrial release falls in
neither category, any habeas petition filed by such a
person must be brought under 28 U.S.C. § 2241. The
petition here is therefore filed under the correct
statute.
A state defendant who is released pending trial
“must still contend with the requirements of the
exhaustion doctrine if [she] seeks habeas corpus
relief in the federal courts.” Lydon, 466 U.S. at 301.
Nonetheless, a petitioner claiming a violation of the
Double Jeopardy Clause need not stand trial a second
time to exhaust her state remedies. See id. at 302.
Instead, she must “take[ ] h[er] claim that [s]he
should not be tried again as far as [s]he can in the
state courts.” Id.
Here, petitioner moved to dismiss Counts One and
Three of the indictment based on her double-jeopardy
claim, and appealed the denial of that motion to the
Massachusetts Supreme Judicial Court, which denied
her claim. Thus, she has exhausted her state-court
remedies for the alleged constitutional violation, and
the matter is ripe for review.
Accordingly, the Court may properly exercise
jurisdiction over the habeas petition. See Lydon, 466
U.S. at 302.
B. Abstention
The primary relief petitioner seeks is release from
state custody and a declaration that a retrial on
Counts One and Three would violate the Double
Jeopardy Clause. (Pet. at 7). In effect, she seeks
a permanent stay of her state prosecution. That
request for relief potentially conflicts with the policy
that, “except under extraordinary circumstances,
 32a
where the danger of irreparable loss is both great
and immediate,” federal courts should abstain from
enjoining state criminal prosecutions or issuing
declaratory or other relief to similar practical effect.
Younger v. Harris, 401 U.S. 37, 45 (1971); see
Samuels v. Mackell, 401 U.S. 66, 73 (1971).
By statute, a court considering a habeas petition
may, “before final judgment or after final judgment of
discharge ... stay any proceeding against the person
detained ... by or under the authority of any State for
any matter involved in the habeas corpus pro-
ceeding.” 28 U.S.C. § 2251.4 Nevertheless, the power
to enjoin state prosecutions must be exercised
sparingly, even when it is permitted. See Younger,
401 U.S. at 54 (requiring abstention based on “the
absence of the factors necessary under equitable
principles to justify federal intervention,” assuming
such intervention was permitted).
A federal court generally must abstain from acting
if “the requested relief would interfere ... with (1) an
ongoing state judicial proceeding; (2) that implicates
an important state interest; and (3) that provides an
adequate opportunity for the federal plaintiff to
advance his federal constitutional challenge,” such as
a state criminal prosecution. Verizon New England,
Inc. v. Rhode Island Dep’t of Lab. & Training, 723
F.3d 113, 116 (1st Cir. 2013). But if there is a
showing of “bad faith, harassment, or some other
extraordinary circumstance that would make absten-
tion inappropriate,” a federal court may enjoin (or

4
The Anti-Injunction Act, 28 U.S.C. § 2283, accordingly does
not bar petitioner’s requested relief. See id. (“A court of the
United States may not grant an injunction to stay proceedings
in a State court except as expressly authorized by Act of
Congress.”).
 33a
effectively enjoin) an ongoing state proceeding.
Middlesex Cnty. Ethics Comm. v. Garden State Bar
Ass’n, 457 U.S. 423, 435 (1982).
A party can establish that extraordinary circum-
stances justify such an injunction by showing that
she will suffer “great and immediate irreparable
injury” if the state proceeding goes forward. Doe v.
Donovan, 747 F.2d 42, 44 (1st Cir. 1984). In a typical
case, a colorable double-jeopardy claim satisfies the
irreparable-injury standard, because “a requirement
that a defendant run the entire gamut of state
procedures, including retrial, prior to consideration of
his claim in federal court, would require him to
sacrifice one of the protections of the Double
Jeopardy Clause.” Lydon, 466 U.S. at 303.5
Here, petitioner makes a colorable double-jeopardy
claim. Even if she is ultimately acquitted of Counts
One and Three, or if a conviction on those counts is
ultimately overturned on double jeopardy grounds,
5
It is true that in one instance the First Circuit applied the
abstention doctrine in a habeas petition alleging a double-
jeopardy violation. See Donovan, 747 F.2d at 44. There, the
alleged violation did not establish irreparable injury arising
from a retrial because of “the unique jurisdictional posture” of
that case. Id. At 45. The petitioner there was a minor less than
a year shy of her eighteenth birthday, who was to stand trial for
manslaughter even if the murder charge against her were
dropped on double-jeopardy grounds, and who could not remain
in state custody after she turned 18. Id. at 44-45. The Court of
Appeals concluded that she “will suffer no significantly greater
harm from a retrial on the murder count even if manslaughter
is subsequently found to be the only permissible charge.” Id.
at 45. However, the court also affirmed the principle that, in
ordinary circumstances, “the mere possibility of retrial prior to a
determination of the federal constitutional claim would con-
stitute irreparable harm justifying federal court intervention.”
Id. at 44.
 34a
she will have suffered irreparable injury from
standing trial again for those charges. The Court
therefore will not abstain, and will consider the
merits of petitioner’s claim.
C. Double Jeopardy
Under the Fifth and Fourteenth Amendments, no
person “shall ... be subject for the same offence to be
twice put in jeopardy of life or limb.” U.S. Const.
amend. V; see U.S. Const. amend. XIV, Benton v.
Maryland, 395 U.S. 784, 794 (1969). The right
“protects against a second prosecution for the same
offense after acquittal, against a second prosecution
for the same offense after conviction, and against
multiple punishments for the same offense.” See
Lydon, 466 U.S. at 306–07.
Here, petitioner contends that the Double Jeopardy
Clause prevents her retrial on Counts One and Three
for two reasons: because the trial judge improperly
declared a mistrial and because she was actually
acquitted as to both counts. Alternatively, she seeks
an order providing for voir dire of the jurors in order
to ascertain whether they did, in fact, vote to acquit
her on both counts prior to the declaration of a
mistrial.
1. Whether the Trial Judge Improperly Declared
a Mistrial
A trial judge may declare a mistrial in a criminal
case without implicating the protections of the
Double Jeopardy Clause whenever, “taking all the
circumstances into consideration,” there is a “manifest
necessity” for doing so. United States v. Perez, 9
Wheat. 579, 580 (1824); Renico v. Lett, 559 U.S. 766,
 35a
6
773 (2010). A “mistrial premised upon the trial
judge’s belief that the jury is unable to reach a
verdict [has been] long considered the classic basis
for a proper mistrial.” Arizona v. Washington, 434
U.S. 497, 509 (1978); accord Renico, 559 U.S. at 774;
Blueford v. Arkansas, 566 U.S. 599, 609 (2012); see
also Downum v. United States, 372 U.S. 734, 736
(1963) (a deadlocked jury is the “classic example” of
when a state may try the same defendant twice).
The decision whether to grant a mistrial is
reserved to the “broad discretion” of the trial judge.
Illinois v. Somerville, 410 U.S. 458, 462 (1973); see
also Perez, 9 Wheat. at 580 (stating that the decision
to declare a mistrial is left to the “sound discretion” of
the judge, but “the power ought to be used with the
greatest caution, under urgent circumstances, and for
very plain and obvious causes”). “The reasons for
‘allowing the trial judge to exercise broad discretion’
are ‘especially compelling’ in cases involving a poten-
tially deadlocked jury.” Renico, 559 U.S. at 775
(quoting Washington, 434 U.S. at 509).
Furthermore, “[t]he trial judge’s decision to declare
a mistrial when he considers the jury deadlocked is ...
accorded great deference by a reviewing court.”
Washington, 434 U.S. at 510. The justification for
deference is that “the trial court is in the best
position to assess all the factors which must be
considered in making a necessarily discretionary
determination whether the jury will be able to reach
a just verdict if it continues to deliberate.” Renico,
559 U.S. at 775. In the absence of such deference,
6
Subsequent to Perez, the Supreme Court clarified that the
“manifest necessity” standard “cannot be interpreted literally,”
and that a mistrial is appropriate when there is a “ ‘high degree’
“ of necessity. Washington, 434 U.S. at 506.
 36a
trial judges might otherwise “employ coercive means
to break the apparent deadlock,” thereby creating a
“significant risk that a verdict may result from
pressures inherent in the situation rather than the
considered judgment of all the jurors.” Id. at 509-10.
The Supreme Court has “expressly declined to
require the ‘mechanical application’ of any ‘rigid
formula’ when trial judges decide whether jury
deadlock warrants a mistrial.” Renico, 559 U.S. at
775 (quoting Wade v. Hunter, 336 U.S. 684, 691, 690
(1949)).
We have also explicitly held that a trial
judge declaring a mistrial is not required
to make explicit findings of “‘manifest
necessity’ “ nor to “articulate on the record
all the factors which informed the deliberate
exercise of his discretion.” And we have
never required a trial judge, before declaring
a mistrial based on jury deadlock, to force
the jury to deliberate for a minimum period
of time, to question the jurors individually,
to consult with (or obtain the consent of)
either the prosecutor or defense counsel, to
issue a supplemental jury instruction, or to
consider any other means of breaking the
impasse.
Id. (quoting Washington, 434 U.S. at 517); see
Blueford, 566 U.S. at 609 (stating that “[w]e have
never required a trial court, before declaring a
mistrial because of a hung jury, to consider any
particular means of breaking the impasse—let alone
to consider giving the jury new options for a verdict”).
Similarly, the First Circuit has held that trial
judges are not required “to take specific steps or
 37a
make specific findings before concluding that a jury is
deadlocked and unlikely to reach a verdict.” United
States v. Candelario-Santana, 977 F.3d 146, 158 (1st
Cir. 2020). Rather, a judge exercises sound discretion
to declare a mistrial based on deadlock as long as she
“take[s] some step to ensure that the jury truly is
unable to reach a verdict before discharging it.” Id.7
Here, there was a “manifest necessity” for the
declaration of a mistrial based on jury deadlock, and
the trial court did not abuse its broad discretion in
reaching that conclusion.
In her memorandum of decision, the trial judge
stated that she “had no doubt based on the jury’s
notes to the Court that [the jury] was unable to reach
a unanimous verdict.” (Pet. Ex. A at 402-403).
Nothing in the jury’s three notes, she found,
“indicated agreement on any of the charges,” or even
an “inkling of an indication of agreement,”
notwithstanding the “care that went into writing the
notes and how articulately they expressed the jurors’
disagreement.” (Pet. Ex. A at 403). Once the jury

7
In an opinion issued before Renico, the First Circuit held
that although there is “no mechanical rule” that determines
whether there is manifest necessity for a mistrial, three factors
“inform[ ]” the inquiry: “(i) whether alternatives to a mistrial
were explored and exhausted; (ii) whether counsel had an
opportunity to be heard; and (iii) whether the judge’s decision
was made after sufficient reflection.” United States v. Toribio-
Lugo, 376 F.3d 33, 39 (1st Cir. 2004). To the extent, if any, that
decision can be read to hold that a failure to consider any of
those three factors is somehow dispositive, it has been
superseded by subsequent Supreme Court decisions. See Renico,
559 U.S. at 779. In any event, the Toribio-Lugo court held that
the inquiry “inevitably reduces to whether the district judge’s
declaration of a mistrial was reasonably necessary under all the
circumstances.” Toribio-Lugo, 376 F.3d at 39.
 38a
reported a deadlock for the third time, Massachusetts
law prohibited the judge from ordering the jury to
continue deliberations without their consent. See
Mass. Gen. Laws ch. 234A, § 68C; Read, 495 Mass. at
321, 323. She concluded that it was “clear” that the
jurors “would not consent to continuing their
deliberations” after it sent the third note. (Pet. Ex. A
at 400).
The SJC similarly concluded that “[t]he jury clearly
stated during deliberations that they had not reached
a unanimous verdict on any of the charges and could
not do so.” Read, 495 Mass. at 313. “The first and
second notes provided no indication of a partial
consensus, and the third note plainly implied the
opposite.” Id. at 322. “In short, the record before the
trial judge suggested complete deadlock.” Id.
This Court sees no basis to conclude that the trial
judge’s decision to declare a mistrial was incorrect or
improper. To begin, the relevant inquiry is not
confined to the brief interval of time between the
receipt of the third note and the trial judge’s
declaration of a mistrial. By that point, the jury
had deliberated for nearly 30 hours, and had sent
three notes to the court indicating that they were
deadlocked the latter two making that point with
considerable emphasis. The trial judge had held two
conferences with counsel to discuss how to respond to
the reported deadlock (during both of which counsel
for defendant had argued that the jury was at an
impasse). After the second conference, the judge gave
the Tuey-Rodriguez instruction. In short, the decision
to declare a mistrial was the product of a multi-day
discussion between counsel and the court. Under the
circumstances, the judge cannot be said to have acted
 39a
precipitately and without adequate time for
reflection.
Nor did the trial judge fail to provide defense
counsel an opportunity to be heard. See Read, 495
Mass. at 325-26. The judge solicited counsel’s views
after the first and second notes; by the time of the
second note, if not earlier, it should have been
obvious to all parties that a mistrial was highly
likely. As for counsel’s opportunity to respond to the
third note, it is true that the span of time was
relatively brief between the point that the trial judge
advised counsel that the jury was at an impasse and
the point she declared a mistrial. But it was not so
brief that counsel could not have objected or asked to
be heard. Furthermore, after the trial judge declared
a mistrial, there is no obvious reason why counsel
could not have immediately asked to be heard at
sidebar in order to seek reconsideration of her
decision before the jury was formally discharged.8
Petitioner also contends that the trial judge
improperly failed to consider alternatives before
declaring a mistrial. The trial judge did, in fact,
consider such alternatives in response to the first and
second note, and concluded after the second note to

8
In Toribio-Lugo, 376 F.3d at 40-42, the trial judge ruled that
defense counsel had consented to the declaration of a mistrial
because she failed to make an objection. The First Circuit
reversed, noting that counsel had made “either two or three
attempts to be heard during the district court’s sua sponte
consideration of whether or not to declare a mistrial,” but that
the judge “stopped counsel in her tracks, cutting her off” on each
occasion, and it was “only after these three attempts to state her
position had been firmly rebuffed that [she] lapsed into silence.”
Id. at 41. That is very far from the situation here, where defense
counsel made no attempt to make an objection or ask to be
heard.
 40a
give a Tuey-Rodriguez instruction. After the third
note which, again, emphatically indicated that the
jury was at a deadlock—Massachusetts law required
her to discharge the jury unless it consented to
continue deliberations. See Mass. Gen. Laws ch. 234A
§ 68C. The judge reasonably determined under the
circumstances that the jury would not consent to do
so. (Pet. Ex. A at 402-403).
Nothing more was required, as a matter of federal
constitutional law, before the trial judge could fairly
conclude that the jury was genuinely deadlocked and
should be discharged. In particular, the trial judge
was not required to inquire about a possible partial
verdict or poll the jury before discharging it. As the
SJC noted, to make further inquiry would create a
substantial possibility of coercing a verdict. See Read,
495 Mass. at 321-24, 26.
In summary, the trial judge took appropriate steps
before determining that the jury was “genuinely
deadlocked.” Candelario-Santana, 977 F.3d at 158
(emphasis in original). The evidence that the jury
was at an unresolvable impasse was substantial, and
the trial judge, in the exercise of her “broad
discretion,” made a well-grounded decision to declare
a mistrial—a decision that is entitled to “great
deference” by this Court. Somerville, 410 U.S. at 462;
see Washington, 434 U.S. at 510. Accordingly,
because there was “manifest necessity” for the
mistrial, petitioner may be tried again on the same
charges without violating her rights under the
Double Jeopardy Clause. See Washington, 434 U.S. at
509.9

9
The trial judge concluded that counsel’s lack of objection
to the declaration of a mistrial constituted implied consent.
 41a
2. Whether the Jury Acquitted Petitioner
Petitioner further contends that she was actually
acquitted by the jury as to Counts One and Three,
and therefore cannot be tried again on those counts.
“[I]t has long been settled under the Fifth Amend-
ment that a verdict of acquittal is final, ending a
defendant’s jeopardy, and ... is a bar to a subsequent
prosecution for the same offence.” McElrath, 601 U.S.
at 94 (quoting Green v. United States, 355 U.S. 184,
188 (1957)) (internal quotation marks omitted). “The
Double Jeopardy Clause recognizes an event as an
acquittal” when “there has been any ruling that the
prosecution’s proof is insufficient to establish
criminal liability for an offense.” Id. at 96.
It is also well-established that “whether an
acquittal has occurred for purposes of the Double
Jeopardy Clause is a question of federal, not state,
law.” Id. The analysis does not depend on state-law
“labels,” and a state’s “characterization, as a matter
of double jeopardy law, of [a ruling] is not binding.”
Id. (quoting Smalis v. Pennsylvania, 476 U.S. 140,
144, n.5 (1986)). Nonetheless, state law remains
relevant.
[T]he ultimate question is whether the
Double Jeopardy Clause recognizes an event
as an acquittal. In making that determina-
tion, we ask whether—given the operation of
state law—there has been “any ruling that
the prosecution’s proof is insufficient to
establish criminal liability for an offense.”

(Pet. Ex. A at 399-402). The SJC concluded that it did not need
to reach the issue. Read, 495 Mass. at 326 n.13. This Court
likewise concludes it need not do so.
 42a
Id. (quoting Evans v. Michigan, 568 U.S. 313, 318
(2013)); see also Smith v. Massachusetts, 543 U.S.
462, 474 (2005) (suggesting that a double-jeopardy
ruling might be different if the state had adopted
different procedural rules).
A “ruling” of insufficient proof does not require a
jury verdict; a judge may direct a verdict of acquittal
or overturn a conviction based on insufficient
evidence. See, e.g., Burks v. United States, 437 U.S. 1,
17–18 (1978). The critical question is whether there
was such a “ruling.” McElrath, 601 U.S. at 96.
Here, the SJC summarized what constitutes a valid
jury verdict under “the operation of” Massachusetts
law:
[T]he fundamental requirements for a jury’s
issuance of a verdict in a criminal case
are set forth in Mass. R. Crim. P. 27(a).
Pursuant to that rule, a valid jury verdict
must be unanimous and returned by the jury
to the judge in open court. Our case law
confirms that a criminal verdict is effective
only when affirmed by jurors in open court.
In other words, the distinction between
informal agreement on a verdict and the
actual return, receipt, and recording of a
verdict in open court is central—only the
latter constitutes a final verdict of the jury
on a criminal charge. We have consistently
reaffirmed this longstanding distinction
throughout our jurisprudence.
Read, 495 Mass. at 327-328 (quotations and citations
omitted); see also A Juvenile v. Commonwealth, 392
Mass. 52, 56-57 (1984) (quoting Lawrence v. Stearns,
11 Pick. 501, 502 (1831)) (“The only verdict which can
 43a
be received and regarded, as a complete and valid
verdict of a jury, upon which a judgment can be
rendered, is an open and public verdict, given in and
assented to, in open court, as the unanimous act of
the jury, and affirmed and entered of record, in the
presence and under the sanction of the court.”).
The SJC concluded that the jury here did not
render a valid verdict under Massachusetts law. See
Read, 495 Mass. at 328 (“Far from an affirmation in
open court of unanimous agreement on counts one
and three, these notes clearly reflected a lack of
consensus on ‘the charges.’ Even if the jury’s deadlock
pertained specifically to count two, their notes made
no such distinction, nor did they indicate any verdict
would be returned to the judge in open court, as
required by Mass. R. Crim. P. 27(a).”). Petitioner
appears to concede as much. (Pet. Reply at 13-16).
Thus, in the absence of a valid verdict under state
law, she must point to some other “ruling that the
prosecution’s proof is insufficient to establish
criminal liability” to show that the jury acquitted her
as a matter of federal constitutional law. McElrath,
601 U.S. at 96 (emphasis added).
Petitioner has not done so. Counsel have pointed to
no case, from any jurisdiction, in which a private,
unreported, and unrecorded vote of a jury was
deemed to be a “ruling” capable of terminating
jeopardy. In fact, the Supreme Court has held that it
is not sufficient for the foreperson of a jury to report
—in open court, in the presence of the other jurors—
that the jury had voted to acquit as to certain counts.
See Blueford, 566 U.S. at 608.
In Blueford, the defendant was tried in Arkansas
state court for capital murder, which included
the lesser included offenses of first-degree murder,
 44a
manslaughter, and negligent homicide. Id. at 602.
After a period of deliberation, the foreperson reported
that the jury was “hopelessly deadlocked.” Id. at 603.
The court then “asked the foreperson to disclose the
jury’s votes on each offense.” Id. The foreperson
reported that the jury had voted unanimously against
capital murder, had voted unanimously against first-
degree murder, was deadlocked on manslaughter,
and had not voted on negligent homicide. Id. at 603-
604. The court gave the jury an Allen charge (its
second) and instructed the jury to resume delib-
erations. Id. at 604. When the jury returned a half an
hour later and reported that they were still
deadlocked, the court declared a mistrial. Id.
The state then sought to retry the defendant on all
charges. Id. He moved to dismiss the capital murder
and first-degree murder charges on double-jeopardy
grounds. Id. The trial court denied the motion, and
the Arkansas Supreme Court affirmed. Id.
The Supreme Court concluded that the defendant
had not been acquitted, and that therefore double
jeopardy did not bar a new trial as to all charges.
Blueford’s primary submission is that he cannot be
retried for capital and first-degree murder because
the jury actually acquitted him of those offenses.
The Arkansas Supreme Court noted—and Blueford
acknowledges—that no formal judgment of acquittal
was entered in his case. But none was necessary,
Blueford maintains, because an acquittal is a matter
of substance, not form. Blueford contends that
despite the absence of a formal verdict, a jury’s
announcement constitutes an acquittal if it “‘actually
represents a resolution ... of some or all of the factual
elements of the offense charged.’” Here, according to
Blueford, the foreperson’s announcement of the jury’s
 45a
unanimous votes on capital and first-degree murder
represented just that: a resolution of some or all of
the elements of those offenses in Blueford’s favor. Id.
at 605-06 (citations omitted). The court rejected that
contention, concluding that “[t]he foreperson’s report
was not a final resolution of anything.” Id. at 606.
When the foreperson told the court how the
jury had voted on each offense, the jury’s
deliberations had not yet concluded. The
jurors in fact went back to the jury room to
deliberate further, even after the foreperson
had delivered her report. When they
emerged a half hour later, the foreperson
stated only that they were unable to reach a
verdict. She gave no indication whether it
was still the case that all 12 jurors believed
Blueford was not guilty of capital or first-
degree murder, that 9 of them believed he
was guilty of manslaughter, or that a vote
had not been taken on negligent homicide.
The fact that deliberations continued after
the report deprives that report of the finality
necessary to constitute an acquittal on the
murder offenses.
Id. The court concluded that it “was therefore
possible for Blueford’s jury to revisit the offenses of
capital and first-degree murder, notwithstanding its
earlier votes.” Id. at 608. “And because of that
possibility, the foreperson’s report prior to the end of
deliberations lacked the finality necessary to amount
to an acquittal on those offenses, quite apart from
 46a
any requirement that a formal verdict be returned or
judgment entered.” Id. 10
Here, even assuming that the jury did take a vote
to acquit petitioner on Counts One and Three, there
is no basis to conclude that any such agreement
was “final[ ].” Id. And unlike Blueford, any such
agreement was not reported in open court in the
presence of the other jurors, casting further doubt on
the finality of any vote.
Petitioner seeks to distinguish Blueford on the
ground that the post-trial juror statements here
reflect the jury’s position at “the end of delib-
erations,” and that therefore there was no real
possibility that a juror might change his or her mind.
(Pet. Mem. at 27-28). But those post-trial statements
do not actually indicate when the relevant votes were
taken, or whether they actually reflect a final, con-
clusive verdict of acquittal by all twelve jurors.
(Pet. Ex. A at 283-88, 292-94, 323-26, 330-31). And
they certainly do not foreclose the possibility that the
relevant votes were based on a preliminary
discussion or a straw poll. See Blueford, 566 U.S. at
608 (“A single juror’s change of mind is all it takes to
require the jury to reconsider”); see also Common-
wealth v. Roth, 437 Mass. 777, 793 (2002) (stating
that even the “most recent ‘vote’ immediately prior to
reporting deadlock may well be tentative, a failed
experiment in compromise, and not a true expression
of each juror’s assessment of the case”).

10
In a later portion of the opinion, where the Supreme Court
concluded that the trial judge did not improperly declare a
mistrial, it “reject[ed] the suggestion” that “the court ... should
have taken some action ... to give effect to [the jury’s] votes.” Id.
at 609.
 47a
In short, any jury vote here was not final, as
required by Blueford. It was not an “actual return,
receipt, and recording of a verdict in open court,” as
required under Massachusetts law. Read, 495 Mass.
at 327. And there is no other basis, in fact or law, to
conclude that it is a “ruling” capable of terminating
jeopardy. Accordingly, and as a matter of federal
constitutional law, petitioner was not actually acquit-
ted of any of the relevant offenses. See McElrath, 601
U.S. at 96.
D. Whether a Post-Trial Voir Dire of Jurors Is
Appropriate
Finally, and alternatively, petitioner requests post-
trial voir dire of the individual jurors in order to
ascertain whether they voted to acquit her on any of
the charges before the trial judge declared a mistrial.
The SJC rejected that request, concluding that
an inquiry would contravene the Massachusetts “pro-
hibition on probing the content of juror delibera-
tions.” Read, 495 Mass. at 330.
There is a threshold question as to whether this
Court has the legal authority to conduct such a voir
dire. As a general matter, the statutory framework
for habeas proceedings contemplates the taking of
evidence. Specifically, Section 2243 provides that a
court “shall summarily hear and determine the facts”
underlying a petition for habeas corpus. 28 U.S.C.
§ 2243. Section 2246 further provides that “[o]n
application for a writ of habeas corpus, evidence may
be taken orally or by deposition, or, in the discretion
of the judge, by affidavit.” 28 U.S.C. § 2246. And
when a federal prisoner files a habeas petition under
Section 2255 challenging his or her federal con-
finement, the statute explicitly authorizes the court
 48a
to “make findings of fact” to determine whether the
claim has merit. 28 U.S.C. § 2255(b).
However, in a petition filed by a state prisoner
under Section 2254 challenging his or her state
confinement, a federal court has more limited
authority. See 28 U.S.C. § 2254(e). In such a pro-
ceeding, “a determination of a factual issue made by
a State court shall be presumed to be correct,” subject
to rebuttal. 28 U.S.C. § 2254(e)(1). If there have been
no state-court factual findings supporting the claim,
the petitioner is entitled to an evidentiary hearing
only if the claim relies on a retroactive rule of
constitutional law or a factual predicate not
discoverable through due diligence, and if the facts
petitioner seeks to adduce would show that “no
reasonable factfinder would have found the applicant
guilty.” 28 U.S.C. § 2254(e)(2).
Petitioner here is not challenging a federal sen-
tence, nor a state court judgment, so her petition is
not brought under either Section 2255 or Section
2254. Instead, she is challenging her state custody
under Section 2241. In one respect, the ability of a
federal court to conduct a factfinding inquiry in
connection with a petition under Section 2241 is
clearly limited; the federal court must give deference
to any findings of fact made by the state courts. See
Marshall v. Bristol Superior Ct., 753 F.3d 10, 16 (1st
Cir. 2014). But the extent of the authority of a federal
court to take additional evidence concerning the
underlying state-court proceeding is not clear.
The general grant of factfinding authority under
Sections 2243 and 2246 would seem to permit the
federal court to conduct an evidentiary hearing
concerning a state-court proceeding under at least
some circumstances. Indeed, at least two federal
 49a
courts appear to have held evidentiary hearings in
matters involving state-prisoner petitions under
Section 2241, although neither opinion cited any
authority for doing so nor provided any relevant legal
analysis. See Johnson v. Patton, 580 F. App’x 646,
649 (10th Cir. 2014) (unpublished) (noting in passing
that the federal court conducted an evidentiary
hearing concerning “jail-time and street-time credits”
for which a state prisoner would be eligible);
Hiratsuka v. Houser, 2022 WL 348460, at *1
(D. Alaska Jan. 5, 2022) (noting in passing that the
federal court held an evidentiary hearing concerning
delays in pre-trial proceedings), report and recom-
mendation adopted, 2022 WL 343772 (D. Alaska Feb.
4, 2022), aff’d, 2023 WL 5695995 (9th Cir. Sept. 5,
2023).
Counsel for petitioner has not, however, pointed to
any case, from any court, where a federal court
considering a Section 2241 petition has either
undertaken its own voir dire of a state-court jury or
ordered a state court to do the same. Either approach
is fraught with potential problems.
To begin, an injunction directing the state trial
court to conduct a voir dire of the former jurors would
implicate substantial concerns of federalism and
comity. Cf. Younger, 401 U.S. at 43-44. While those
concerns may be somewhat mitigated if this Court
itself conducts the voir dire, such a process would
nonetheless represent a substantial intrusion by a
federal court into the functions and role of the state
judiciary. For example, and at a minimum, this Court
would have to issue an order directing the state court
to produce the impounded juror list. Such a voir dire
should be undertaken, if at all, only in extraordinary
 50a
circumstances and even then with great circum-
spection and care.
Furthermore, the voir dire petitioner proposes
would inevitably require a detailed inquiry into the
jury’s deliberations. Petitioner contends that the
inquiry could be limited to a simple yes-or-no ques-
tion as to any votes the jury may have taken before
the declaration of the mistrial. But surely more than
that would be required. A voir dire would serve little
or no purpose unless it established that the jury took
a unanimous and conclusive vote of acquittal on one
or more counts. To make such a finding, it would be
necessary to ascertain when any votes were taken,
and what each juror said and thought at the time of
the vote. How many votes were taken? Were they
straw votes, or otherwise preliminary or tentative?
What was the timing of those votes in connection
with the various notes to the trial judge? What, if
anything, did jurors say to each other about the
votes? Did the votes reflect any compromises? Was
the possibility of compromise discussed? What were
the mental processes of each juror? Did any jurors
have private reservations about the vote they cast?
How can any such votes be reconciled with the jury’s
public statements that they were deadlocked on the
 51a
11
“charges”? Why are the juror affidavits incon-
sistent? 12
Nor would the inquiries be limited to the delibera-
tions and votes inside the jury room. Because the
events in question happened more than eight months
ago, it would also be necessary to inquire into
matters such as the potential pressures on jurors
since the conclusion of the trial and the effect, if any,
of such pressures on their testimony. See Read, 495
Mass. at 332 (noting that any inquiry of the jurors
would necessarily “occur well after they became
susceptible to outside influences”). Those are hardly
hypothetical concerns, given the intense public focus
on the jurors and their expressly voiced concerns for
their privacy and even physical safety. (Pet. Ex. A at,
293, 324, 325-26).
Any voir dire of that nature would, at a minimum,
involve considerable complexities and lead to
extended delays. But even assuming that the many
practical issues with a voir dire could be resolved—
and even putting the federalism and comity issues to
one side—there is a more substantial problem with
petitioner’s proposal: it runs directly contrary to long-

11
The trial judge found that the post-trial statements by
jurors “directly contradict[ed]” the jury’s notes, particularly the
third note, which stated they were “starkly divided” as to
whether the elements of “the charges” had been proved. (Pet.
Ex. A at 396 n.4). The SJC likewise concluded that the state-
ments were “inconsistent with” and “contradict[ed] their prior
notes.” Read, 495 Mass. at 313-14.
12
The post-trial juror statements are inconsistent as to what
charge (or charges) resulted in a unanimous verdict; what the
vote count was as to the deadlocked charge; and whether the
deliberations were respectful or had become a “bully match.”
(Pet. Ex. A at 283-85, 325-31).
 52a
established principles that generally prohibit any
examination of the content of juror deliberations. See
Tanner v. United States, 483 U.S. 107, 127 (1987).
The starting point for the analysis is Rule 606(b)(1)
of the Federal Rules of Evidence. That rule provides
as follows:
During an inquiry into the validity of a
verdict or indictment, a juror may not testify
about any statement made or incident that
occurred during the jury’s deliberations; the
effect of anything on that juror’s or another
juror’s vote; or any juror’s mental processes
concerning the verdict or indictment. The
court may not receive a juror’s affidavit or
evidence of a juror’s statement on these
matters.
Fed. R. Evid. 606(b)(1). 13 That rule codified long-
standing common-law principles designed to protect
the freedom of juror deliberations, the protection of
jurors against harassment, and the finality of
verdicts. See Tanner, 483 U.S. at 119-21 (noting that
“full and frank discussion in the jury room, juror’s
willingness to return an unpopular verdict, and the
community’s trust in a system that relies on the
decisions of laypeople would all be undermined by a
barrage of post-verdict scrutiny of juror conduct”);
Warger v. Shauers, 574 U.S. 40, 47–48 (2014). The
Supreme Court in Tanner observed that the pro-
hibitions set out in Rule 606(b)(1) derived from a

13
Rule 606(b)(2) provides three narrow exceptions to the rule,
none of which are applicable here: inquiry is allowed only into
extraneous prejudicial information, outside influence, or clerical
errors made when entering the verdict on the verdict form. See
Fed. R. Evid. 606(b)(2).
 53a
long-standing common-law rule supported by
“[s]ubstantial policy considerations”:
Jurors would be harassed and beset by the
defeated party in an effort to secure from
them evidence of facts which might establish
misconduct sufficient to set aside a verdict.
If evidence thus secured could be thus used,
the result would be to make what was
intended to be a private deliberation the
constant subject of public investigation—to
the destruction of all frankness and freedom
of discussion and conference.
Id., 483 U.S. at 120 (quoting McDonald v. Pless, 238
U.S. 264, 267-68 (1915)); see also Commonwealth v.
Fidler, 377 Mass. 192, 196 (1979) (“[I]t is essential to
the freedom and independence of [jury] deliberations
that their discussions in the jury room should be kept
secret and inviolable; and to admit the testimony of
jurors to what took place there would create
distrust, embarrassment and uncertainty[.]”)
(quoting Woodward v. Leavitt, 107 Mass. 453, 460
(1871)).14
It is true that Rule 606 does not literally apply
here, because the jury did not actually render a

14
As noted, the SJC concluded that the voir dire requested
by petitioner would contravene Massachusetts law and its
“prohibition on probing the content of juror deliberations.” Read,
495 Mass. at 330. It stated that “[m]aintaining the secrecy of
those deliberations is a bedrock of our judicial system,” which
“not only prevents jury tampering but also upholds the finality
of jury verdicts and fosters confidence in the judicial process.”
Id. at 330-31 (quotation omitted). “Probing secret deliberations
to determine whether the jurors may have privately agreed on a
verdict they never returned would undermine these funda-
mental principles.” Id. at 331.
 54a
“verdict.” Fed. R. Evid. 606(b)(1). Nonetheless, the
same policy considerations concerning the freedom of
juror deliberations and the protection of jurors
against harassment are unquestionably implicated in
the circumstances of this case. In fact, they apply
with unusual force. This is a highly sensationalized
prosecution that has been the subject of exceptional
public scrutiny, not only locally but nationally. For a
number of reasons, it has also proved to be unusually
divisive. There is a strong likelihood that jurors
would be subject to harassment, public pressure, and
social coercion were the Court to order a post-trial
voir dire that explores their viewpoints and votes at
some length. 15 More than eight months after the
conclusion of the trial, the jurors’ willingness to
speak honestly about their deliberations would surely
be compromised. 16

15
While the Court could of course order that the juror names
be kept confidential, it is at least somewhat doubtful that their
anonymity could be entirely and permanently protected. More
importantly, the jurors themselves would likely doubt the
efficacy of any such order, and their willingness to speak freely
concerning their deliberations would likely be inhibited.
16
According to petitioner, “in the context of this highly
publicized case, it strains credulity to suggest” that if the post-
trial juror statements did not “represent the unanimous view of
all 12, the remaining jurors would allow the inaccuracy to go
uncorrected.” (Pet. Mem. at 27). It is at least as likely that the
remaining seven jurors are inhibited from coming forward in
order to avoid continued media and social pressure, whether
they agree with the post-trial statements or not. (Pet. Ex. A at
331) (Juror B stating that he believes “other jurors have been
reluctant to come forward because there is so much public and
media attention focused on this case”). In any event, the actual
views of those jurors could only be ascertained by a detailed voir
dire.
 55a
Even the policy underlying Rule 606(b)(1) that
favors finality is implicated, if only by analogy. The
jury notes reporting a deadlock—culminating in the
note stating that the jury was “starkly divided” as to
whether the Commonwealth had proved “the
necessary elements of the charges”—led ineluctably
to a substantial, if not final, legal consequence: the
declaration of a mistrial and the termination of the
first trial. (Pet. Ex. A at 268).
For all of those reasons, the Court concludes that a
federal-court voir dire of the state-court jurors—a
voir dire that would necessarily subject their private
deliberations to intense public scrutiny—is probably
unlawful and certainly ill-advised. But in any event,
under the circumstances presented here, the Court
concludes that it is not necessary to reach the issue.
Even assuming that a post-trial voir dire elicited
evidence strongly favorable to petitioner—such as an
attestation from each juror that the jury voted
unanimously to acquit petitioner on Counts One and
Three before being discharged—her claim would still
fail.
As noted, an acquittal requires a “ruling that the
prosecution’s proof is insufficient to establish
criminal liability for an offense.” McElrath, 601 U.S.
at 96 (emphasis added). A private, unreported,
unrecorded jury vote is not a “ruling,” and therefore
not an acquittal. Id. At the very least, such a “ruling”
requires finality, and the public affirmation of a
verdict is part of what makes it final, rather than
provisional. The opportunity for “a single juror’s
change of mind” is enough to undermine its finality.
Blueford, 566 U.S. at 608. And such a vote, in any
event, does not constitute an acquittal under
Massachusetts law. Read, 495 Mass. at 326-30.
 56a
Therefore, there was no “ruling” that acquitted
petitioner as to Counts One and Three. McElrath,
601 U.S. at 96.
Accordingly, the Court declines to order post-trial
voir dire of the individual jurors in the initial trial of
this matter.
III. Conclusion
For the foregoing reasons, the petition for a writ of
habeas corpus is DENIED.
 57a
APPENDIX C
495 Mass. 312
SUPREME JUDICIAL COURT OF
MASSACHUSETTS, SUFFOLK
————
SJC-13663
————
KAREN READ
v.
COMMONWEALTH.
————
Argued November 6, 2024.
Decided February 11, 2025.
————
Attorneys and Law Firms
Martin G. Weinberg (Alan J. Jackson, of California,
Michael Pabian & David R. Yannetti also present) for
the petitioner.
Caleb J. Schillinger, Assistant District Attorney
(Laura A. McLaughlin, Assistant District Attorney,
also present) for the Commonwealth.
Jessie Rossman, Daniel McFadden, & Michael T.
Packard, for American Civil Liberties Union of
Massachusetts, Inc., amicus curiae, submitted a
brief.
Present: Budd, C.J., Gaziano, Kafker, Wendlandt,
Georges, Dewar, & Wolohojian, JJ.
 58a
OPINION
GEORGES, J.
The defendant challenges the denial of her motion
to dismiss after her first trial ended in a mistrial.1
That trial was lengthy, spanning eight weeks of
evidence, involving seventy-four witnesses and 657
exhibits. The defendant does not contend that this
evidence was legally insufficient to support a con-
viction on any of the charges, which would preclude
retrial.2 Instead, her argument focuses on whether
the trial judge properly declared a mistrial and the
relevance, if any, of posttrial accounts of jury
deliberations.
The jury deliberated for five days, sending progres-
sively insistent notes to the judge about their
inability to reach a unanimous verdict. In their third
and final note, the jury stated that “[s]ome members
... firmly believe[d] that the evidence surpasses the
burden of proof establishing the elements of the
charges,” while others did not. They described their
views as rooted in “sincere adherence to [their]
individual principles and moral convictions,” and
stated that further deliberation would be “futile” and
would “force [them] to compromise these deeply held
beliefs.” Based on this final note, the judge declared a
mistrial.
The defendant’s motion to dismiss and this petition
rely on posttrial accounts from several jurors. These

1
Although Karen Read commenced this action by filing a
petition in the county court, for convenience, we refer to her as
the defendant.
2
The record submitted to the single justice, and now before
this court, does not contain transcripts of the testimony or the
exhibits from the defendant’s first trial.
 59a
accounts suggest that, during deliberations, the jury
unanimously agreed the defendant was not guilty on
two of the three charges and were deadlocked only on
the remaining charge. The defendant argues that a
mistrial was thus not manifestly necessary because
the judge could have requested a partial verdict
from the jury before discharging them. The defendant
further asserts that these posttrial accounts show she
was, in effect, acquitted of two charges, and that
double jeopardy bars retrial on those counts.
This petition thus raises the question: Can post-
trial accounts of jurors’ private deliberations that are
inconsistent with their public communications in
court render the declaration of a mistrial improper,
or constitute an acquittal, where the jury did not
announce or record a verdict in open court? We
conclude that they cannot. The jury clearly stated
during deliberations that they had not reached a
unanimous verdict on any of the charges and could
not do so. Only after being discharged did some
individual jurors communicate a different supposed
outcome, contradicting their prior notes. Such post-
trial disclosures cannot retroactively alter the trial’s
outcome – either to acquit or to convict. Accordingly,
we affirm the trial judge’s denial of the motion to
dismiss and the defendant’s request for a posttrial
juror inquiry.3
Background. 1. Trial and deliberations. In 2022, a
grand jury returned three indictments against the
defendant: murder in the second degree, G. L. c. 265,
§ 1 (count one); manslaughter while operating a

3
The motion filed by the American Civil Liberties Union of
Massachusetts, Inc., seeking leave to file an amicus curiae brief,
is hereby allowed.
 60a
motor vehicle under the influence of alcohol, G. L.
c. 265, § 13 1/2 (count two); and leaving the scene of
personal injury resulting in death, G. L. c. 90, § 24 (2)
(a 1/2) (2) (count three). Trial began in April 2024 and
lasted over two months. On the thirty-seventh day,
the jury received instructions regarding the three
indictments, and two lesser included offenses for
count two: involuntary manslaughter and motor
vehicle homicide.
Before deliberations began, the judge indicated
that the foreperson of the jury would be given
separate verdict slips for each of the three indict-
ments. The judge then explained the procedure for
delivering the verdicts:
“After the final vote of the jury, the fore-
person should check the appropriate boxes
as to each charge, then sign and date the
verdict slips and notify the court officer that
you have reached a unanimous verdict. You
will then be brought back into the court-
room, where the foreperson will deliver the
verdicts to the Court.”
The judge also instructed the jury to “continue
deliberating until you have reached a final verdict on
each charge,” and to not disclose their numerical
standing or progress to anyone, including the judge,
“before such time as you have reached a unanimous
verdict.” The jury then began deliberations.
Three days later, after approximately nineteen
hours of deliberations, the foreperson submitted a
note to the judge (first note) that stated:
“I am writing to inform you, on behalf of the
jury, that despite our exhaustive review of
the evidence and our diligent consideration
 61a
of all disputed evidence, we have been
unable to reach a unanimous verdict.”
After reading the note into the record, the judge
requested argument from the parties on whether the
jury had conducted “due and thorough” deliberations,
warranting a so-called Tuey-Rodriquez charge. 4
The Commonwealth argued that the jury had not
deliberated long enough, while the defense disagreed,
requesting the instruction and asserting that the
foreperson’s use of the word “exhaustive” suggested
“an impasse.” The judge determined that further
deliberation was appropriate and instructed the jury
to continue.
Deliberations extended through the afternoon and
resumed the following Monday morning. At 10:45
A.M., the jury foreperson submitted another note to
the judge (second note), which stated:
“Despite our commitment to the duty en-
trusted to us, we find ourselves deeply
divided by fundamental differences in our
opinions and state of mind.
“The divergence in our views are [sic] not
rooted in a lack of understanding or effort,
but deeply held convictions that each of us

4
See Commonwealth v. Rodriquez, 364 Mass. 87, 101-102,
300 N.E.2d 192 (1973) (Appendix A); Commonwealth v. Tuey,
8 Cush. 1, 2-3 (1851). The Tuey–Rodriquez charge is a model
instruction “given when jurors report deadlock after ‘due and
thorough deliberation’” that is “designed to urge the jury to
reach a verdict by giving more serious consideration to opposing
points of view.” Commonwealth v. Carnes, 457 Mass. 812, 827,
933 N.E.2d 598 (2010). Once a deadlocked jury receives the
Tuey–Rodriquez charge and resumes their deliberations, “they
shall not be sent out again without their own consent.” G. L. c.
234A, § 68C.
 62a
carry ultimately leading to a point where
consensus is unattainable.
“We recognize the weight of this
admission and the implications it holds.”
Upon receiving this note, the judge again invited
argument from both parties. The Commonwealth
acknowledged that the jury had already deliberated
“in the vicinity of 22 or 23 hours,”5 but nonetheless
argued it was premature to conclude their delibera-
tions had been due and thorough. Defense counsel,
however, maintained that the jury were “hopelessly
deadlocked,” and again requested the Tuey-Rodriquez
instruction. The judge agreed with defense counsel,
noting that the jury had been “extraordinary” and
that she had “never seen a note like this reporting to
be at an impasse.” The judge then delivered the Tuey-
Rodriquez instruction to the jury and sent them back
to deliberate further.
At approximately 2:30 P.M., the foreperson sub-
mitted yet another note to the judge (third note),
which stated:
“Despite our rigorous efforts, we continue to
find ourselves at an impasse.
“Our perspectives on the evidence are
starkly divided. Some members of the jury
firmly believe that the evidence surpasses
the burden of proof establishing the
elements of the charges beyound [sic] a
reasonable doubt. Convers[e]ly, others find

5
Although the transcript does not state the precise time that
deliberations resumed on Monday morning, based on prior
proceedings it appears the jury had deliberated closer to twenty-
four or twenty-five hours by this point.
 63a
the evidence fails to meet this standard, and
does not sufficiently establish the necessary
elements of the charges[.]
“The deep division is not due to a lack of
effort or diligence, but rather a sincere
adherence to our individual principles and
moral convictions.
“To continue to deliberate would be
futile and only serve to force us to
compromise these deeply held beliefs.”
After receiving the third note, the judge informed
counsel that “[t]he jury is at an impasse.” The jury
were called back into the court room, and the third
note was read aloud into the record. Upon reaching
the final line – stating that further deliberation
would “force [the jury] to compromise these deeply
held beliefs” – the judge addressed the jury, saying,
“I am not going to do that to you ... folks,” and
declared a mistrial.
The judge then discharged the jury back to the
deliberation room, explaining that she would meet
them there privately to thank them for their service.
The judge and the parties remained in the court room
to discuss their availability for scheduling a status
conference on the matter. At no point during this
discussion did defense counsel object to the judge’s
declaration of a mistrial or express disagreement
with that outcome.
2. Posttrial events. According to affidavits sub-
mitted by defense counsel, a member of the deliberat-
ing jury (juror A) contacted defense counsel on July 2,
2024, after noticing “inaccurate reports” about the
jury’s alleged “split” that caused the mistrial the day
before. Juror A stated that the jury had unanimously
 64a
agreed that the defendant was not guilty of count one
(murder in the second degree) and count three
(leaving the scene of personal injury resulting in
death).
Two days after the mistrial, defense counsel also
received screenshots6 of text message exchanges with
jurors or their acquaintances describing the delibera-
tions. In one exchange, another member of the jury
(juror B) wrote, “It was not guilty on second degree.
And split in half for the second charge.”7 In another
exchange, an individual (referred to as an “[i]nformant”
by defense counsel) was advised that another juror
(juror C) had told friends there was “no considera-
tion” of murder in the second degree and that the
jury deadlocked on “the remaining charges.” The
exchange contained no mention of count three, but it
stated that “manslaughter started polling at 6/6 then
ended deadlock [sic] @ 4no8yes.” Juror C had also
reportedly stated that the jurors had “a group text
going.” Upon receiving this information, the inform-
ant commented, “[I]f they all agreed on no for murder
two[,] they should make that clear to the DA[ ] and
the court. [I]t’s basically a case of double jeopardy if
she is retried on that charge.”
On July 8, 2024, one week after the mistrial, the
defendant filed a motion to dismiss based on these
posttrial accounts. The defendant argued that the
accounts showed the jury had effectively acquitted

6
“A screenshot is a copy of the image displayed by a computer
screen” (quotation and citation omitted). Commonwealth v.
Cronin, 495 Mass. 170, 171 n.2, 248 N.E.3d 142 (2025).
7
One month later, juror B contacted defense counsel to
confirm the content of this exchange, and further asserted that
the jury had unanimously agreed the defendant was not guilty
of count three as well.
 65a
her of counts one (murder in the second degree) and
three (leaving the scene of personal injury resulting
in death). She further contended that the judge’s
mistrial declaration was improper for these two
counts and requested, at minimum, a postverdict
inquiry to confirm whether the jury had agreed she
was not guilty of those charges.
Defense counsel later supplemented the motion
with accounts from two additional jurors. One juror
(juror E) stated that the jury had been deadlocked
only on the “lower charges on count 2.” The other
juror (juror D) stated that the jury’s disagreement
solely concerned “Count 2 and its lesser offenses.”
Juror D indicated that the jury had debated whether
to inform the judge of their decision on counts one
and three, but they were uncertain “if they were
allowed” to do so. Juror D claimed that, after discuss-
ing the matter, the jury ultimately “decided to inform
the court that they were deadlocked, and they
expected they would get further instruction about the
remaining (decided) counts thereafter.”
The Commonwealth also submitted a posttrial
filing notifying the court that, after the submission of
defense counsel’s affidavits, it had received two
voicemail messages from a member of the jury. The
juror specified that the jury had voted not guilty on
counts one and three, “and as of last vote[,] 9-3 guilty
... on the lower-level manslaughter charges.” The
Commonwealth also received e-mail messages from
three individuals who identified themselves as jurors
and asked to speak anonymously. Once the Common-
wealth informed them that it may be required to
disclose the substance of their communications to
defense counsel or the court, however, the jurors
declined to communicate further.
 66a
The trial judge denied the defendant’s motion to
dismiss after a nonevidentiary hearing. The judge
reasoned that, “[b]ecause there was no open and
public verdict affirmed in the open court rendered in
this case, the defendant was not acquitted of any of
the charges,” and that any posttrial voir dire of jurors
would involve an impermissible inquiry into the
substance of the jury’s deliberations.
Additionally, the judge rejected the defendant’s
argument that declaring a mistrial was improper.
She noted that defense counsel had twice requested
the Tuey-Rodriquez instruction – “the final step” pre-
ceding a mistrial – and raised no objections nor made
any request to be heard when the mistrial was
declared. The judge remarked that “defense counsel
were no shrinking violets” during the trial, making it
unlikely that, “when counsel heard that the jury was
at an impasse for a third time and a mistrial was
inevitable, at perhaps the most crucial point in the
trial, counsel would sit silently if they did not consent
to a mistrial.” She also concluded that, in any event,
the mistrial was manifestly necessary given the
jury’s repeated statements of deadlock.
On September 11, 2024, the defendant filed a
petition for relief under G. L. c. 211, § 3, in the county
court. 8 A single justice of this court reserved and

8
Although a defendant ordinarily is not entitled to
interlocutory review of the denial of a motion to dismiss, we
have recognized a narrow exception to this general rule in the
context of double jeopardy claims. See Neverson v. Common-
wealth, 406 Mass. 174, 175, 546 N.E.2d 876 (1989). The
Commonwealth does not contest that interlocutory review is
appropriate in the circumstances of the instant case.
 67a
reported the matter, without decision, to the full
court.9
Discussion. 1. Propriety of declaring a mistrial. The
double jeopardy clause of the Fifth Amendment to the
United States Constitution “generally preclude[s] the
Commonwealth from trying a defendant more than
once for the same offense.” Commonwealth v. Phim,
462 Mass. 470, 473, 969 N.E.2d 663 (2012). See
Benton v. Maryland, 395 U.S. 784, 787, 795-796, 89
[Link]. 2056, 23 [Link].2d 707 (1969) (Federal double
jeopardy clause applicable to States by Fourteenth
Amendment). However, an exception to this general
rule applies when a mistrial is declared due to “mani-
fest necessity” (citation omitted). Ray v. Common-
wealth, 463 Mass. 1, 3, 972 N.E.2d 421 (2012). In
such instances, the double jeopardy clause does not
bar the State from retrying the defendant. See id.
To determine whether the declaration of a mistrial
is manifestly necessary, a trial judge balances “the
defendant’s valued right to have his or her trial
completed by a particular tribunal against the
interest of the public in fair trials designed to end
in just judgments” (quotations and citation omitted).
Commonwealth v. Edwards, 491 Mass. 1, 17, 198
N.E.3d 740 (2022). A hung jury has long been
recognized as “a traditional example” of manifest
necessity, allowing retrial without offending the
defendant’s double jeopardy rights. Commonwealth v.
Troila, 410 Mass. 203, 206, 571 N.E.2d 391 (1991).
See Richardson v. United States, 468 U.S. 317, 326,
104 [Link]. 3081, 82 [Link].2d 242 (1984) (“jeopardy does

9
At the time this matter was reserved and reported, the
defendant’s retrial was scheduled to begin on January 27, 2025.
The retrial has since been continued until April 2025.
 68a
not terminate when the jury is discharged because it
is unable to agree”).
The decision to declare a mistrial is entrusted to
the “sound discretion” of the trial judge. Common-
wealth v. Bryan, 476 Mass. 351, 352, 67 N.E.3d 705
(2017). Trial judges receive such discretion to avoid
the possibility of coercive measures being used to
force jury agreement, thereby protecting the fairness
of the proceedings. See A Juvenile v. Commonwealth,
392 Mass. 52, 55, 465 N.E.2d 240 (1984). See also
Renico v. Lett, 559 U.S. 766, 774, 130 [Link]. 1855, 176
[Link].2d 678 (2010). In evaluating whether a trial
judge abused his or her discretion in declaring a
mistrial, a reviewing court considers whether the
judge carefully explored “alternatives to a mistrial,”
and whether counsel were “given full opportunity
to be heard” (citation omitted). Commonwealth v.
Taylor, 486 Mass. 469, 484–485, 159 N.E.3d 143
(2020). If these principles were followed, and there is
no claim of insufficient evidence to support a
conviction, “double jeopardy will not prevent [the
defendant’s] retrial” (citation omitted). 10 Ray, 463
Mass. at 4, 972 N.E.2d 421.
Here, we discern no abuse of discretion in the trial
judge’s decision that the jury were at an impasse and
that a mistrial was manifestly necessary. After
extensive, multiday deliberations, the jury submitted
several increasingly emphatic notes about their
inability to reach a unanimous verdict. By the time
the jury sent their first note, they had deliberated for
approximately nineteen hours, over four days. That

10
The defendant has not argued that the evidence presented
at her first trial was legally insufficient to sustain a conviction,
and we thus do not address the issue.
 69a
note stated that they had conducted an “exhaustive
review of the evidence,” and given “diligent con-
sideration of all disputed evidence.” Following the
judge’s instruction to continue their deliberations, the
jury deliberated for another five to six hours –
spanning a Friday afternoon and the following
Monday morning – before sending a second note that
was noticeably more definitive. That note stated
jurors were “deeply divided by fundamental differ-
ences” and that “consensus [was] unattainable,”
echoing language from other cases where we
have characterized a jury’s report of deadlock as
“unambiguous.” See, e.g., Ray, 463 Mass. at 5, 972
N.E.2d 421 (concluding that jury note stating jurors
were “hopelessly deadlocked” was “unambiguous”
about their inability to agree); Fuentes v. Common-
wealth, 448 Mass. 1017, 1018, 863 N.E.2d 43 (2007)
(final note stating that jurors were “unable to come to
a unanimous decision” unequivocally reflected that
they were deadlocked).
The second note further emphasized that the
deadlock arose not from “a lack of understanding or
effort,” but from “deeply held convictions that each of
[the jurors] carr[ied].” By this point, the jury had
already deliberated approximately twenty-four hours,
see note 5, supra, and defense counsel described them
as “hopelessly deadlocked.” But the trial judge did
not immediately conclude that all hope of attaining
a verdict was lost. Instead, she issued the Tuey-
Rodriquez charge, a standard instruction that
encourages deadlocked juries to “reach a verdict by
giving more serious consideration to opposing points
of view” (citation omitted). Commonwealth v. Chalue,
486 Mass. 847, 860, 162 N.E.3d 1205 (2021).
 70a
After nearly four hours of additional deliberation –
bringing the total to approximately twenty-eight
hours – the jury submitted a third note that was even
more emphatic. It stated that further deliberations
“would be futile and only serve to force us to
compromise [our] deeply held beliefs.” While there is
no “mechanical formula” for determining whether a
jury is genuinely deadlocked, see Ray, 463 Mass. at 4-
5, 972 N.E.2d 421, quoting Illinois v. Somerville, 410
U.S. 458, 462, 93 [Link]. 1066, 35 [Link].2d 425 (1973),
the trial judge acted well within her discretion in
concluding the jury were at an impasse and a
mistrial was manifestly necessary.
The defendant contends that, despite the jury’s
deadlock, the trial judge failed to adequately consider
alternatives to declaring a mistrial. Yet, as discussed,
the trial judge did consider and pursue such
alternatives. After the first note reporting deadlock,
the judge instructed jurors to continue their
deliberations. After the second note, the judge issued
the Tuey-Rodriquez charge. It was only when the jury
submitted their third report of deadlock, at which
point the judge was statutorily precluded from
ordering them to continue deliberations without their
consent, see G. L. c. 234A, § 68C, that the judge
declared a mistrial. Nonetheless, the defendant
argues that the judge should have inquired whether
the jury had reached agreement on any of the
charges. Had the judge done so, the defendant
asserts, she would have discovered that the jury had
agreed on counts one and three, allowing for a partial
verdict. We disagree.
Rule 27 (b) of the Massachusetts Rules of Criminal
Procedure, 378 Mass. 897 (1979), “gives a trial judge
discretion to require a jury to return a verdict” for
 71a
charges on which they have unanimously agreed
before declaring a mistrial (quotation and citation
omitted). Commonwealth v. Floyd P., 415 Mass. 826,
830, 615 N.E.2d 938 (1993). See Mass. R. Crim. P. 27
(b) (“judge may first require the jury to return
verdicts on those charges upon which the jury can
agree and direct that such verdicts be received and
recorded” [emphasis added]). Rule 27 (d) also permits
a judge to poll the jury “[w]hen a verdict is returned
and before the verdict is recorded.” Mass. R. Crim. P.
27 (d). However, “a judge is not required to accept” a
partial verdict before declaring a mistrial, Daniels
v. Commonwealth, 441 Mass. 1017, 1018 n.3, 808
N.E.2d 816 (2004), and is prohibited from doing so on
a single indictment that contains lesser included
offenses, see Commonwealth v. Roth, 437 Mass. 777,
787, 776 N.E.2d 437 (2002).
Here, the jury were instructed on three separate
indictments, along with two lesser included offenses
on count two, but the trial record offers no indication
that a partial verdict was imminent or possible. The
jury’s first note simply stated they were “unable to
reach a unanimous verdict,” without reference to any
specific charge. The second note reiterated that
consensus was unattainable and acknowledged “the
implications” of the jury’s deadlock. Neither note
suggested the jury had reached, or could reach,
consensus on any subset of the charges, 11 and we
11
As the trial judge observed in her memorandum of decision
denying the defendant’s motion to dismiss, it is particularly
striking that the jury notes provided “no inkling” of agreement
on any of the charges. Additionally, the notes did not request
clarification on whether a partial verdict could be returned. This
absence is particularly significant given the evident “care that
went into writing the notes and how articulately they expressed
the jurors’ disagreement.”
 72a
have cautioned against assuming a final verdict
exists from general reports of deadlock. See Roth, 437
Mass. at 793–794, 776 N.E.2d 437.
In fact, the jury’s third note implied they were
deadlocked on all charges. That note stated, in part:
“Some members of the jury firmly believe
that the evidence surpasses the burden of
proof establishing the elements of the
charges [beyond] a reasonable doubt.
Convers[e]ly, others find the evidence fails to
meet this standard, and does not sufficiently
establish the necessary elements of the
charges” (emphases added).
Although the defendant relies on posttrial affida-
vits to suggest “the charges” referred only to count
two and its lesser included offenses, we assess the
trial judge’s decision based on what was known at the
time of her decision. See Commonwealth v. Torres,
453 Mass. 722, 736, 905 N.E.2d 101 (2009). As one
court has observed, allowing posttrial juror accounts
to affect the analysis “would create endless confusion
and controversy” in cases where a mistrial has
already been declared due to deadlock. Fitzgerald v.
Lile, 732 F. Supp. 784, 789 (N.D. Ohio), aff’d, 918
F.2d 178 (6th Cir. 1990).
In short, the record before the trial judge suggested
complete deadlock. The first and second notes
provided no indication of a partial consensus, and the
third note plainly implied the opposite. See State
v. Fennell, 431 Md. 500, 522, 66 A.3d 630 (2013),
and cases cited (“the mere theoretical availability
of partial verdicts” does not obligate trial judge
to conduct further inquiry where “no party has
requested a partial verdict be taken or the jury does
 73a
not indicate that it has reached one”). Further still,
these notes indicated that additional inquiry into the
jury’s deliberations risked producing a coerced
verdict.
Judges must carefully avoid actions that might
pressure jurors into compromising their genuine
views of the evidence. See Commonwealth v. Foster,
411 Mass. 762, 765, 585 N.E.2d 331 (1992). And we
have long recognized that “deadlocked juries are
particularly susceptible to coercion.” Roth, 437 Mass.
at 791, 776 N.E.2d 437.
See Commonwealth v. O’Brien, 65 Mass. App. Ct.
291, 295, 839 N.E.2d 845 (2005), and cases cited. It is
precisely for this reason that judges are statutorily
prohibited from ordering further deliberations by a
deadlocked jury that has twice reported being at an
impasse after due and thorough deliberation, unless
they explicitly consent or seek clarification on the
law. See Commonwealth v. Tiscione, 482 Mass. 485,
492, 124 N.E.3d 690 (2019), quoting G. L. c. 234A,
§ 68C (“If, after ‘due and thorough deliberation,’ the
jury report to the judge twice that they are dead-
locked, ‘they shall not be sent out again without their
own consent, unless they ask from the court some
further explanation of the law’”). The risk of coercion
is also heightened when a judge inquires about the
possibility of a partial verdict following a deadlock.
As we have explained:
“Where the jurors have twice reported them-
selves deadlocked, and have already heard
the Tuey-Rodriquez charge, a judge’s inquiry
concerning partial verdicts cannot avoid
communicating to the jury the judge’s desire
to salvage something from the trial. However
the inquiry is articulated or explained, the
 74a
import of the inquiry is unmistakable: ‘Can’t
you at least decide a part of this case?’ The
inquiry, by its nature, plays on the dead-
locked jurors’ natural sense of frustration,
disappointment, and failure. The jurors are
confronted with the request, and asked to
absorb its inherent complexity, at the worst
possible time, when they are tired, anxious
to be discharged, and perhaps angry at
fellow jurors whom they blame for failing to
reach agreement.”
Roth, supra at 792, 776 N.E.2d 437.
In this case, the risks of coercion were evident.
After receiving the third note, the judge was
statutorily barred from ordering further deliberation
without the jury’s consent. See G. L. c. 234A, § 68C.
Far from suggesting that consent might be obtained,
the third note made clear that further deliberation
would “only serve to force [the jurors] to compromise
... deeply held beliefs” rooted in “sincere adherence to
[their] individual principles and moral convictions.”
See Commonwealth v. Winbush, 14 Mass. App. Ct.
680, 682, 442 N.E.2d 416 (1982) (statutory prohibi-
tion on ordering further deliberation was designed to
prevent jurors “from being coerced into reaching a
verdict in the face of views conscientiously reached
and held”). Asking jurors whether they would none-
theless consent to further deliberation would have
implicitly pressured them to compromise those beliefs
in order to “salvage” some part of the trial. Roth, 437
Mass. at 792, 776 N.E.2d 437.
In these circumstances, “[t]here is simply too great
a risk” that any resulting verdict “would merely be
the product of one hasty, final attempt to satisfy the
judge’s apparent desire for some form of decision on
 75a
the case.” Id. at 793, 776 N.E.2d 437. And if the
judge were to inquire about the possibility of a
partial verdict, “by definition, any further discussion
amongst the jurors regarding their response to the
judge’s partial verdict inquiry would itself be further
deliberation” in violation of the statute. Id. at 792,
776 N.E.2d 437.
Indeed, if the judge had inquired about a partial
verdict on her own initiative, and the jury returned
a verdict of guilty on any of the counts, “there is
no question that this defendant would be making a
strenuous – and potentially meritorious -argument
that that guilty verdict was the product of coercive
intrusion into the function of the jury.” Roth, 437
Mass. at 792, 776 N.E.2d 437. Thus, given the entire
course of jury deliberations, and the emphatic lan-
guage of the third note that jurors were deadlocked
on “the charges” and that further deliberation would
be coercive, the judge acted within her discretion in
declaring a mistrial without inquiring sua sponte
about a partial verdict. See Fuentes, 448 Mass. at
1018–1019, 863 N.E.2d 43 (judge was not required to
ask jury if they would consent to further delibera-
tions before declaring mistrial because jury had
already received Tuey- Rodriquez instruction and
final note unequivocally stated they were dead-
locked); Daniels, 441 Mass. at 1018 n.3, 808 N.E.2d
816.
For much the same reason, the trial judge’s decisio
not to poll the jury sua sponte to confirm the
deadlock before declaring a mistrial did not con-
stitute an abuse of discretion. As we explained in
Ray, 463 Mass. at 5 n.5, 972 N.E.2d 421, polling
jurors about “whether further instructions or delib-
eration would be likely to resolve the deadlock” is
 76a
discouraged due to the “risk of coercion inherent
in questioning jurors, particularly in individual
colloquies.” A trial judge is not “required to consider
every conceivable alternative before declaring a
mistrial,” and we discern no abuse of discretion in
the judge not pursuing alternatives suggested, after
the fact, by defense counsel based on information
obtained after the mistrial was declared. Common-
wealth v. Cassidy, 410 Mass. 174, 179, 571 N.E.2d
383 (1991) (“If an alternative which was neither
suggested by counsel nor considered by the judge is
later developed, we will not fault the judge, so long as
an honest inquiry into alternatives is made”). See
generally Blueford v. Arkansas, 566 U.S. 599, 609–
610, 132 [Link]. 2044, 182 [Link].2d 937 (2012) (“We
have never required a trial court, before declaring a
mistrial because of a hung jury, to consider any
particular means of breaking the impasse – let alone
to consider giving the jury new options for a verdict”).
The defendant further contends, separately from
the availability of alternatives, that it was an abuse
of discretion to declare a mistrial without first
notifying defense counsel of the content of the third
note and allowing an opportunity to be heard. First,
it is worth noting that the trial judge discredited
defense counsel’s claim that he lacked such an
opportunity. See generally Commonwealth v. Garner,
490 Mass. 90, 94, 188 N.E.3d 965 (2022) (appellate
courts defer to credibility determinations of trial
judge). The judge explained that she had previously
sought defense counsel’s views after receiving each of
the first two jury notes, when counsel had argued
that the jury were at an impasse. The only alterna-
tive proposed by defense counsel during these
exchanges was the issuance of a Tuey-Rodriquez
charge, which the judge granted. When the third note
 77a
prompted the mistrial, defense counsel neither
objected nor expressed any dissatisfaction, even when
the parties remained in the court room to schedule a
subsequent status conference.
In any event, there is no indication that inviting
defense counsel to participate in a third round of
“consultation would have produced any fruitful
alternatives.” Fuentes, 448 Mass. at 1019, 863 N.E.2d
43. As discussed, the receipt of the third note barred
the judge from “requiring further deliberation
without the jury’s consent” because they had already
engaged in due and thorough deliberations and twice
reported being deadlocked. Commonwealth v. Carnes,
457 Mass. 812, 829, 933 N.E.2d 598 (2010). Further-
more, nothing suggested that defense counsel would
have requested an inquiry into the possibility of a
partial verdict based on the content of the jury
notes.12 See Oliver v. Justices of the N.Y. Supreme
Court of N.Y. County, 36 N.Y.2d 53, 58, 364 N.Y.S.2d
874, 324 N.E.2d 348 (1974) (“Having displayed no
enthusiasm for the rendering of a partial verdict
while the jury was still impaneled, and a guilty
verdict still possible, the defense may not seek to
overturn the court’s order of mistrial after discharge
of the jury ...”). While the more prudent course might

12
It is difficult to imagine that a competent defense attorney,
upon learning that some members of the jury “firmly believe[d]”
the evidence proved “the elements of the charges” beyond a
reasonable doubt, would request that the jury be instructed to
return verdicts on any charges where agreement had been
reached. As other courts have recognized, “[a] defendant may
have a tactical reason for not requesting the trial court to
question the jury about a partial verdict,” and trial judges
should not be required to inquire about partial verdicts on their
own initiative. State v. Tate, 256 Conn. 262, 286 n.16, 773 A.2d
308 (2001).
 78a
have been to read the third note to counsel and
provide yet another opportunity to be heard before
declaring a mistrial, the trial judge did not abuse her
discretion in failing to do so. See Fuentes, supra.
In sum, we conclude that the trial judge acted
within her discretion in declaring a mistrial without
first inquiring about a partial verdict or offering
defense counsel an additional opportunity to be
heard. Considering the length of jury deliberations,
the judge’s prior efforts to encourage consensus, and
the increasingly emphatic tone of the jury notes
indicating deadlock, it was clear the jury had reached
an impasse. Furthermore, nothing suggested that the
deadlock was limited to a specific charge; on the
contrary, the notes contained no inkling of agree-
ment, and the third note implied the jury were
deadlocked on all charges. Under these circum-
stances, given the content of the notes and the fact
that defense counsel did not request further inquiry,
engaging in one sua sponte risked coercing a verdict.
Thus, the judge appropriately exercised her discre-
tion in declaring a mistrial based on manifest
necessity. See Daniels, 441 Mass. at 1017, 808 N.E.2d
816, and cases cited (judge did not abuse discretion in
declaring mistrial after four days of deliberation
where jury had reported impasse and received Tuey-
Rodriquez charge but remained unable to reach
verdict and stated, in response to judicial inquiry,
that additional deliberation would not result in
verdict). See also Fuentes, 448 Mass. at 1018–1019,
863 N.E.2d 43 (no abuse of discretion in declaring
mistrial without first asking whether jury would
consent to deliberate further where jury had already
been given Tuey-Rodriquez instruction and final jury
 79a
note “unequivocally stated that the jury were ‘unable
to come to a unanimous decision’”).13
2. Defendant’s claims of acquittal. The defendant
separately argues that she cannot be retried on count
one or count three, regardless of whether the mistrial
declaration was proper. She contends that posttrial
information from five deliberating jurors 14 –
indicating the jury were deadlocked only on count
two and had unanimously found her not guilty on
counts one and three15 – effectively amounts to an
acquittal of those counts. Alternatively, she asserts
that the trial judge abused her discretion in denying
a posttrial inquiry to verify these accounts of juror
deliberations. We examine each contention below.

13
Because we conclude that the trial judge acted within her
discretion in determining that declaring a mistrial was mani-
festly necessary, we do not need to address the defendant’s
alternative argument that defense counsel did not consent to
the mistrial. Similarly, we do not address the defendant’s
ancillary argument, raised here for the first time, that the court
should have conducted a colloquy with the defendant before
finding such consent. But see Daniels, 441 Mass. at 1018 n.2,
808 N.E.2d 816 (“That [the defendant] did not personally assent
to the mistrial makes no difference”). Cf. Poretta v. Common-
wealth, 409 Mass. 763, 766, 569 N.E.2d 794 (1991) (“there can
be no doubt that the Federal Constitution does not condition the
permissibility of retrial on the defendant’s personal, explicit
assent to a mistrial motion brought by his attorney”).
14
For purposes of adjudicating the motion to dismiss, the trial
judge accepted the purported juror statements as true and
accurate. For purposes of this discussion, we similarly proceed
from the assumption that the affidavits are accurate.
15
Juror C did not disclose information indicating whether the
jury had unanimously agreed that the defendant was not guilty
on count three.
 80a
a. Claim of acquittal based on juror disclosures
The double jeopardy clause of the United States
Constitution prohibits retrial for the same offense
after an acquittal. See McElrath v. Georgia, 601 U.S.
87, 93-94, 144 [Link]. 651, 217 [Link].2d 419 (2024). See
also G. L. c. 263, § 7. To determine whether an
acquittal has occurred, we look to whether, “given the
operation of state law,” the jury “acted on [their] view
that the prosecution had failed to prove its case”
(citation omitted). McElrath, supra at 96, 144 [Link].
651. Because this presents a legal question, our
review of the trial judge’s decision is de novo.
Commonwealth v. Hebb, 477 Mass. 409, 411, 77
N.E.3d 308 (2017).
Relevant here, “the fundamental requirements” for
a jury’s issuance of a verdict in a criminal case are
set forth in Mass. R. Crim. P. 27 (a). Roth, 437 Mass.
at 786, 776 N.E.2d 437. Pursuant to that rule, a valid
jury verdict must be unanimous and “returned by the
jury to the judge in open court.” Mass. R. Crim. P. 27
(a). Our case law confirms that a criminal verdict is
effective only when affirmed by jurors in open court.
See A Juvenile, 392 Mass. at 56-57, 465 N.E.2d 240,
quoting Lawrence v. Stearns, 11 Pick. 501, 502 (1831)
(“The only verdict which can be received and
regarded, as a complete and valid verdict of a jury,
upon which a judgment can be rendered, is an open
and public verdict, given in and assented to, in open
court, as the unanimous act of the jury, and affirmed
and entered of record, in the presence and under the
sanction of the court”). In other words, the distinction
between informal “agreement on a verdict” and the
actual “return, receipt, and recording of a verdict” in
open court is central – only the latter constitutes a
final verdict of the jury on a criminal charge.
 81a
A Juvenile, supra, quoting Commonwealth v.
Kalinowski, 12 Mass. App. Ct. 827, 830, 429 N.E.2d
368 (1981). We have consistently reaffirmed this
long-standing distinction throughout our jurispru-
dence.16
In this case, it is undisputed that the jury did not
announce a final verdict on any charge. Although the
defendant has submitted affidavits claiming the
jurors reached an agreement on counts one and three
during deliberations, the only statements made in
open court reflected the jury’s inability to reach a
unanimous verdict. As discussed, the jury submitted
three separate notes to the judge indicating deadlock
-culminating in a final note indicating that “[s]ome
members of the jury firmly believe[d] that the
evidence surpasse[d] the burden of proof establishing
the elements of the charges,” while others did not.
Far from an “affirmation in open court” of
unanimous agreement on counts one and three, see

16
See Commonwealth v. Tennison, 440 Mass. 553, 561, 800
N.E.2d 285 (2003) (initial verdict “was sealed but not yet valid
because it was not given and affirmed orally by the jurors in
open court”); Gelmette v. Commonwealth, 426 Mass. 1003, 1003,
686 N.E.2d 198 (1997) (polling of jurors, after declaration of
mistrial in murder case, showing that eleven had voted to
convict defendant of lesser included offense of manslaughter,
and one had voted to acquit, “was of no effect and ... did not
constitute an acquittal on so much of the indictment as charged
murder in the first and second degree”). See also Rich v. Finley,
325 Mass. 99, 105, 89 N.E.2d 213 (1949) (no final verdict where
one juror died after jury had unanimously agreed to verdict, but
before jury announced that verdict in open court); Lawrence, 11
Pick. at 502 (no final verdict where jury had come to unanimous
agreement, but where one juror changed his mind following
morning when jury met to return final verdict); Kalinowski, 12
Mass. App. Ct. at 830, 429 N.E.2d 368.
 82a
A Juvenile, 392 Mass. at 57, 465 N.E.2d 240, these
notes clearly reflected a lack of consensus on “the
charges.” Even if the jury’s deadlock pertained
specifically to count two, their notes made no such
distinction, nor did they indicate any verdict would
be returned “to the judge in open court,” as required
by Mass. R. Crim. P. 27 (a). In the absence of a
verdict returned, received, and recorded in open
court, we cannot conclude that the jury “acted on
[their] view that the prosecution had failed to prove
its case” (citation omitted). McElrath, 601 U.S. at 96,
144 [Link]. 651. See Clark v. State, 170 Tenn. 494, 502,
97 S.W.2d 644 (1936) (“however fully it may be made
to appear that the jury arrived among themselves at
the decision that [the defendant] was not guilty,
there is no claim that they agreed to so report or
return, or that they agreed to report any agreement
whatever, except that they could not agree”).17
The defendant nonetheless argues that “any lack of
formality” in the jurors’ intended dispositions of

17
The circumstances of Clark, 170 Tenn. 494, 97 S.W.2d 644,
are very similar to those at issue here. There, a defendant
argued that he had been acquitted at his first trial, after
learning that the jury had agreed he was not guilty and had
deadlocked only as to his codefendant. See id. at 497, 97 S.W.2d
644. Rejecting this argument, the Supreme Court of Tennessee
explained:
“Agreement on the issue of guilt or innocence is of the
very essence of a verdict....
“We have here no ‘verdict’ reported, and none ‘agreed
on and intended to be expressed.’ It is conceded here
that the report of disagreement was that intended to
be reported. This determinative distinction runs
through all the cases we have examined.” (Citation
omitted.)
Id. at 501, 503, 97 S.W.2d 644.
 83a
counts one and three should not prevent those
dispositions from taking legal effect. However, the
requirement that a verdict be returned and affirmed
in open court is far from a mere formality. Rather,
“[t]hese principles recognize that, as a practical
matter, jurors may agree in the course of delibera-
tions to a tentative compromise on the facts of a case
or on the disposition of related charges as they
attempt to reach unanimous agreement.” Floyd P.,
415 Mass. At 831, 615 N.E.2d 938. See Blueford, 566
U.S. at 608, 132 [Link]. 2044. Since “[a] jury should not
be precluded from reconsidering a previous vote on
any issue” (citation omitted),
A Juvenile, 392 Mass. at 56, 465 N.E.2d 240,
tentative or conditional agreements reached amid
deliberations “cannot have the force of a final
verdict,” Floyd P., supra. See A Juvenile, supra (“A
jury should not be precluded from reconsidering a
previous vote on any issue, and the weight of final
adjudication should not be given to any jury action
that is not returned in a final verdict” [citation
omitted]).
Requiring a jury to publicly affirm their verdict in
open court thus serves a vital purpose – it ensures
that the verdict agreed upon in private truly reflects
the unanimous and deliberate judgment of each
juror under public scrutiny, rather than a tentative
compromise. See Commonwealth v. Lawson, 425
Mass. 528, 530, 682 N.E.2d 845 (1997). See also
People v. Thornton, 155 Cal. App. 3d 845, 859, 202
[Link]. 448 (1984). Maintaining this distinction
between private deliberations and public verdicts is
essential to preserving both the confidentiality of jury
discussions and the integrity of the judicial system.
Thus, because the jury did not publicly affirm that
 84a
the defendant was not guilty of the charges, there
was no acquittal barring retrial under the double
jeopardy clause. See A Juvenile, 392 Mass. at 56-57,
465 N.E.2d 240 (signed verdict slips reflecting votes
of not guilty, found in deliberation room after
mistrial had been declared due to deadlock, did not
constitute acquittals). See also Commonwealth v.
Mayfield, 398 Mass. 615, 630, 500 N.E.2d 774 (1986)
(information indicating that “jury were deadlocked,
eleven to one, for conviction of murder but only in the
second degree,” and had purportedly agreed that
defendant was not guilty of murder in first degree,
did not bar retrial because “[t]here was no open and
public verdict of not guilty”).
b. Request for posttrial juror inquiry. Finally we
consider the denial of the defendant’s request for a
posttrial juror inquiry. Generally, a judge is not
obligated to investigate jury deliberations unless
there is evidence that jurors were exposed to extra-
neous information or demonstrated racial or ethnic
bias. See Commonwealth v. Pytou Heang, 458 Mass.
827, 858, 942 N.E.2d 927 (2011). Even in cases of
alleged bias, however, judicial inquiry cannot delve
into jurors’ subjective reasoning or deliberative
content. See Matter of the Enforcement of a Sub-
poena, 463 Mass. 162, 168, 972 N.E.2d 1022 (2012).
Because the trial judge is afforded “broad discretion”
in assessing whether a posttrial juror inquiry is
appropriate, Commonwealth v. Guisti, 434 Mass. 245,
251, 747 N.E.2d 673 (2001), S.C., 449 Mass. 1018,
867 N.E.2d 740 (2007), we review that determination
only for an abuse of discretion, see Pytou Heang,
supra.
Here, the defendant concedes that the affidavits do
not indicate exposure to extraneous matters or juror
 85a
bias that would suggest her right to an impartial
jury was compromised. Contrast Commonwealth
v. McCalop, 485 Mass. 790, 799, 152 N.E.3d 1114
(2020). Instead, she argues that the affidavits suggest
an “unannounced verdict” warranting further in-
quiry. Yet, as discussed, a verdict, as a matter of law,
requires a public announcement in open court. No
verdict exists if none was announced, or even
intended to be announced, by the jury before they
were discharged. See Commonwealth v. Brown, 367
Mass. 24, 28, 323 N.E.2d 902 (1975), S.C., 378 Mass.
165, 390 N.E.2d 1107 (1979) and 470 Mass. 595, 24
N.E.3d 1025 (2015) (“once the jury have been
discharged, they have no further power to deliberate
or to agree to a verdict”).
Allowing inquiry into a private agreement reached
in the secrecy of the deliberation room would also
contravene our prohibition on probing the content of
juror deliberations. Maintaining the secrecy of those
deliberations is a “bedrock of our judicial system”
(citation omitted). Commonwealth v. Moore, 474
Mass. 541, 548, 52 N.E.3d 126 (2016), S.C., 489 Mass.
735, 187 N.E.3d 986 (2022). See Woodward v. Leavitt,
107 Mass. 453, 460 (1871). It not only prevents
jury tampering but also upholds the finality of jury
verdicts and fosters confidence in the judicial process.
See Commonwealth v. Fidler, 377 Mass. 192, 195,
385 N.E.2d 513 (1979). Probing secret deliberations
to determine whether the jurors may have privately
agreed on a verdict they never returned would
undermine these fundamental principles. See Wood-
ward, supra at 471 (juror testimony as to “part which
he [or she] took in the discussions and votes of the
jury” is not permissible “because it relate[s] to the
private deliberations of the jury”); Brown v. State,
661 So. 2d 309, 311 (Fla. Dist. Ct. App. 1995) (even
 86a
though postdischarge inquiry asked jurors to “disa-
vow the nonexistence of a verdict rather than to
impeach a verdict already in existence,” it still
constituted improper inquiry as to jurors’ mental
processes). Were it otherwise, “[j]urors would be
harassed and beset by the defeated party in an effort
to secure from them evidence of facts” that might be
used to set aside a final verdict (citation omitted).
Fidler, supra.
Nor is the defendant merely seeking juror testi-
mony as to a “mistake” entered on a final verdict slip.
See Mass. G. Evid. § 606(c) (2024) (permitting juror
testimony about mistakes “made in entering the
verdict on the verdict form”). Here, there is no
suggestion that the jury’s failure to return a verdict
was the result of a clerical error. The posttrial
accounts do not dispute that the jurors had reached
an impasse, as they reported, and had decided not to
return a verdict slip on any charge, as occurred.
Contrast Brown, 367 Mass. at 27-28, 323 N.E.2d 902,
and cases cited (permitting testimony to correct
clerical mistakes in verdict where jury, without
outside influence, “immediately indicated” error in
announced verdict). No juror expressed surprise or
disagreement in court when the judge declared a
mistrial based on the jury’s report that they could not
reach a unanimous verdict on “the charges.” Contrast
Latino v. Crane Rental Co., 417 Mass. 426, 431, 630
N.E.2d 591 (1994) (juror inquiry permissible where
jurors audibly answered “no” during polling of jury).
Additionally, the limited exception for juror
testimony concerning mistaken verdicts only results
in alteration of a verdict where there has been no
“opportunity for outside influence.” Brown, 367
Mass. at 29, 323 N.E.2d 902, and cases cited. Cf.
 87a
Commonwealth v. DiBenedetto, 94 Mass. App. Ct.
682, 684–685, 118 N.E.3d 151 (2019). Here, all the
defendant’s affidavits concern jurors’ accounts to
others after leaving “the control of the court.” Brown,
supra at 28, 323 N.E.2d 902. See Dietz v. Bouldin,
579 U.S. 40, 49, 136 [Link]. 1885, 195 [Link].2d 161
(2016); State v. Edwards, 15 Wash. App. 848, 850–
852, 552 P.2d 1095 (1976) (when jury leave “the
sterility of the court’s control ... contamination is
presumed”). A posttrial inquiry of these jurors would
similarly occur well after they became susceptible to
outside influences and would not provide a rec-
ognized basis for altering the result of the first trial.
See Commonwealth v. Johnson, 359 Pa. 287, 293–
294, 59 A.2d 128 (1948) (court could not alter verdict
of acquittal upon learning that jury had intended to
convict defendant of lesser offense, where jury “had
ample opportunity” to clarify or express disagreement
with original verdict when it was announced in open
court prior day). Thus, the trial judge did not err or
abuse her discretion in denying the defendant’s
request for such an inquiry where it would not
change the outcome of the defendant’s first trial. The
jury chose to report a deadlock, not a verdict, and no
basis exists for further investigation into private
discussions or subjective beliefs they declined to
announce publicly in open court.
Conclusion. For the reasons stated above, the trial
judge correctly denied the defendant’s motion to
dismiss and request for a posttrial juror inquiry. The
case is remanded to the county court for entry of a
judgment denying the defendant’s petition for relief.
So ordered.
 88a
APPENDIX D
COMMONWEALTH OF MASSACHUSETTS
NORFOLK, ss.
————
Superior Court Criminal Action 22-00117
————
COMMONWEALTH
vs.
KAREN READ
————
MEMORANDUM OF DECISION AND ORDER
ONDEFENDANT’S MOTION TO DISMISS
On June 9, 2022, a Norfolk County grand jury
indicted defendant Karen Read on charges of murder
in the second degree (Indictment 1), manslaughter
while operating under the influence of alcohol
(Indictment 2), and leaving the scene of personal
injury and death (Indictment 3), following the death
of her boyfriend, John O’Keefe, on January 29, 2022.
Trial on the matter began in April 2024. There were
eight weeks of evidence and nearly five days of
deliberations. After the jurors expressed to the Court
that they were deadlocked for a third time, the Court
declared a mistrial.
The defendant now moves to dismiss the charges
for murder in the second degree and leaving the scene
of personal injury and death arguing that retrial
would violate the double jeopardy protections of the
federal and state constitutions because the jury, in
fact, reached a unanimous decision to acquit the
defendant on those charges. Alternatively, the de-
 89a
fendant argues that dismissal is required because
there was no manifest necessity to support the
declaration of the mistrial with respect to those
charges. After careful consideration, this Court con-
cludes that because the defendant was not acquitted
of any charges and defense counsel consented to the
Court’s declaration of a mistrial, double jeopardy is
not implicated by retrial of the defendant. The motion
is therefore DENIED.
BACKGROUND
On June 25, 2024, the jury began its deliberations
in the defendant’s trial. In addition to the three
indictments, the Court had instructed the jury to
consider two lesser included offenses to manslaughter
while operating under the influence of alcohol —
involuntary manslaughter and motor vehicle
homicide (OUI liquor and negligence).
On Friday, June 28, 2024, at approximately 12:10
p.m., the jury foreperson sent a note to the Court. It
stated: “I am writing to inform you on behalf of the
jury that despite our exhaustive review of the evidence
and our diligent consideration of all disputed evidence,
we have been unable to reach a unanimous verdict.”
The Court requested argument from the Common-
wealth and the defendant as to whether there had
been due and thorough deliberation from the jury.
Assistant District Attorney Lally, on behalf of the
Commonwealth, argued that the jury had not had
sufficient time to deliberate and that therefore, it
was far too early in the deliberative process to give
the jury the Tuey-Rodriguiez instruction. 1 He also

1
The use of the Tuey-Rodriguiez instruction is a matter of
discretion of the trial judge. Commonwealth v. Parreira, 72
Mass. App. Ct. 308, 316 (2008). It is the “orthodox approach to
 90a
pointed out that although the note indicated that the
jury had not yet come to a conclusion, it did not
indicate that doing so was not possible. Attorney
Yannetti, on behalf of the defendant, “disagree[d]
with Mr. Lally’s characterization of the note.” He
argued:
“The word exhaustive is the word that I
think is operative here. [The jury is]
communicating to the court that they’ve
exhausted all manner of compromise, all
manner of persuasion and they’re at an
impasse. You know, this is a case where they
jury has the legal instructions. They’ve only
really asked one question, which was to try
and get a report they were not allowed to
get, and I think the message has been
received that the evidence is closed and they
won’t get anything more. They’ve been
essentially working nonstop over the last
three, four days. We’re approaching a
weekend. They didn’t come back with this at
three o’clock or four o’clock. They’re at
twelve o’clock and they have nowhere to
turn. So our position is the jury should be
read the Tuey-Rodriguez model instructions
and go from there.”
The Court ruled that given the length of the trial,
the number of exhibits and witnesses, the complexity
of the issues, and that the jury had only been
deliberating for three days, deliberations had not

dealing with a deadlocked jury” see Commonwealth v. Firmin,

89 Mass. App. Ct. 62, 64 (2016) (citation omitted), and “designed
to urge the jury to reach a verdict by giving more serious
consideration to opposing points of view.” Commonwealth v.
Semedo 456 Mass. 1, 20 (2010).
 91a
been sufficiently due and thorough to warrant a
Tuey-Rodriguiez instruction. It instructed the jury to
continue deliberating.
On Monday, July 1, 2024, at approximately 10:45
a.m., the jury sent another note to this Court. This
note stated:
“Despite our commitment to the duty
entrusted in us, we find ourselves deeply
divided by fundamental differences in our
opinions and state of mind. The divergence in
our views are not rooted in a lack of under-
standing or effort but deeply held convictions
that each of us carry, ultimately leading to a
point where consensus is unattainable. We
recognize the weight of this admission; and
the implications it holds.”
The Court again requested argument from counsel
as to whether there had been due and thorough
deliberations. The Commonwealth argued that the
jury had been deliberating twenty-two to twenty-
three hours but given the length of trial, number of
exhibits and witnesses, and complexity of issues, they
had not done a thorough deliberation up to this point.
Attorney Yannetti, again, had a vastly different view.
He argued:
“Our view is that it is time for a Tuey-
Rodriguez [instruction]. They have come
back twice indicating essentially that they’re
hopelessly deadlocked but the content of this
latest message is that they have been over
all the evidence. The previous message said
they did an exhaustive review. This time
they said that . . . they have fundamental
disagreements about what the evidence
 92a
means. It’s a matter of opinion. It’s not a
matter of lack of understanding. This court
when you sent the jury out encouraged them
not to take a straw vote, encouraged them to
go over all the evidence in a very methodical
manner. I think all indications are that they
have done that. This is what Tuey-Rodriguez
is for.”
The Court agreed that the jury had engaged in due
and thorough deliberations, noting that his jury had
been “extraordinary” and it had never seen a note
like this from a jury. It thereafter provided the jury of
the full Tuey-Rodriguez instruction and asked them
to return to the deliberations with those instructions
in mind.2

2
The Tuey-Rodriguez instruction states: “Our Constitution and
laws provide that in a criminal case, the principal I method for
deciding questions of fact is the verdict of a jury. In most cases
and perhaps strictly speaking in all cases’ absolute certainly
cannot be obtained nor is it expected. The verdict to which each
juror agrees must of course be his or her own verdict, the result of
his or her own convictions, and not merely an acquiescence in the
conclusions Of other jurors. Still, in order to bring twelve minds
to a unanimous result, you must examine the issues you have to
decide with candor and with the proper regard and respect for
each other’s opinions. You should consider that it is desirable that
this case be decided. You have been selected in the same manner
and from the same source as any I future jury would be selected.
There is no reason to suppose that this case will ever be
submitted to twelve persons’ who are more intelligent, more
impartial, or more competent to decide it than you are or that
more or clearer evidence will be produced at another trial. With
all this in mind it is your duty to decide this case if you can do so
conscientiously. In order to make a decision more attainable, the
law always imposes the burden of proof on the Commonwealth to
establish every essential element of each indictment beyond a
reasonable doubt. If you are, left I with a reasonable doubt as to
any essential element of any indictment, then the defendant is
 93a
That same day, at approximately 2:30 p.m., the
jury sent another note to the Court. The Court stated
to counsel that the jury was at an impasse. After the
jurors filed into the courtroom; the Court read the
note:
“Despite our rigorous efforts we continue to
find ourselves at an impasse. Our persp-
ectives on the evidence are starkly divided.
Some members of the jury firmly believe that
the evidence surpasses the burden of proof
establishing the elements of the charges
beyond a reasonable doubt. Conversely, others
find the evidence fails to meet this standard
and does not sufficiently establish the
necessary elements of the charges. The deep
division is not due to lack of effort or
diligence, but rather a sincere adherence to
our individual principles and moral
convictions. To continue to deliberate would

entitled to the benefit of that doubt and must be found ‘not guilty’
on that indictment. In conferring together, you are to give proper
respect I to each other’s opinions, and listen with an open mind to
each other’s arguments. Where there is disagreement, those
jurors who would find the defendant ‘not guilty’ should consider
whether the doubt in their minds is a reasonable one if it makes
no impression on the minds of the other jurors who are equally
intelligent, who have heard the same evidence with the same
attention, who have an equal desire to arrive at the truth and
who have taken the same oath as jurors. At the same time, those
jurors who would find the defendant ‘guilty’ ought seriously to
ask themselves whether they may not reasonably doubt the
correctness of their judgment if it is not shared by other
members of the jury. They should ask themselves whether they
should distrust the weight or sufficiency of the evidence if it has
failed to convince the minds of their fellow jurors beyond a
reasonable doubt.”
 94a
be futile and only serve to force us to
compromise these deeply held beliefs.”
After reading this note, the Court declared a
mistrial and discharged the jury back to the
deliberation room to wait for the judge. Counsel
remained in the courtroom to discuss an agreeable
date to return for a status conference.
On July 8, 2024, the defendant filed the instant
motion to dismiss supported by affidavits from
Attorney Yannetti and co-counsel, Attorney Jackson.
Attorney Jackson’s affidavit stated that on July 2,
2024, a juror in the case (“Juror A”) contacted him.
Attorney Jackson was able to identify the person as a
deliberating juror based on his/her description of who
he/she is, where he/she was seated, and certain
identifying information (name and occupation) dis-
closed during the voir dire process. According to
Attorney Jackson’s affidavit, Juror A told him that
he/she wished to inform him of the true results of the
deliberations because he/she believed those results
significantly impact the defendant’s rights. Juror A
said the jury unanimously agreed that the defendant
was not guilty of Counts 1 and 3 and specifically that
the murder charge was “off the table.” First Jackson
Affidavit at par. 5.
In his affidavit, Attorney Jackson also stated:
“Neither Ms. Read nor her counsel consented to the
entry of the mistrial. Defense counsel was denied the
opportunity to request that the Court inquire on
which count or counts the jury may have been
deadlocked (including lesser included offenses), and
on which count or counts the jury may have arrived
at a verdict.” Id. at pars. 9 and 10.
 95a
Attorney Yannetti’s affidavit averred that on July
3, 2024, he received communications from two
“informants” who had received information from two
deliberating jurors in the case. The first informant
(“Informant B”) sent him a screenshot he/she had
received from someone else (“Intermediary B”) of text
messages that Intermediary B had purportedly
received from a juror (“Juror B”). Attorney Yannetti
averred that he was able to positively identify which
juror was Juror B based on a first name given to him
from Informant B. In the screenshot, Juror B texted
Intermediary B, “It was not guilty on second degree.
And split in half for the second charge. When the
judge sent us back with that Hernandez thing to look
at the other side it turned into a bully match. I
thought the prosecution didn’t prove the case. No one
thought she hit him on purpose or even thought she
hit him on purpose. . . .” Yannetti Affidavit at par. 4.
Attorney Yannetti stated that another informant
(“Informant C”) contacted him on July 3, 2024.
Informant C told him he or she personally knows a
juror (“Juror C”) and that Informant C and Juror C
have a mutual friend (“Intermediary C”) who is a
current coworker and friend of Juror C. Intermediary
C told Informant C via text message that Juror C was
a deliberating juror; in the case. Intermediary C had
a discussion over text message with Juror C about
the experience of being a juror. Intermediary C said
that Juror C said there was “no consideration for
murder 2. Manslaughter started polling at 6/6 then
ended deadlocked [at] 4no8yes. . .” Yannetti Affidavit
at par. 10. Informant C texted back, “interesting. If
there was no consideration for murder two, shouldn’t
she have been acquitted on that count[] and hung on
 96a
the remaining chargers [sic] goes back to the jury
verdict slip that was confusing.”3 Id
Intermediary C texted, “she should’ve been
acquitted I agree. Yes, the remaining charges were
what they were hung on. And that instruction paper
was very confusing.” Id
Attorney Yannetti stated that based on the desc-
ription of Juror C he received from Informant C and
the description of what Juror C told Intermediary C,
he could positively identify that Juror C was a
deliberating juror.
Attorney Yannetti later filed a supplemental
affidavit in support of the defendant’s motion to
dismiss wherein he stated that he received an unsol-
icited phone call from an individual identifying
himself/herself as Juror B. Juror B told Attorney
Yannetti that he/she was familiar with the affidavit
he had previously filed and confirmed the substance
of the conversation between Informant B and
Intermediary B. Juror B clarified that he/she meant
to write, “No one thought she hit him on purpose or
even knew that she had hit him.” Yannetti
Supplemental Affidavit at par. 4.
On July 10, 2024, Attorney Jackson submitted a
supplemental affidavit stating that on July 8, 2024,
another juror (“Juror D”) contacted him. He
identified this person as a juror by the description of
who he/she is, where he/she was seated, and certain
identifying information (name and occupation)

3
As noted below, defense counsel argued to the Court that
the verdict slip for Indictment 2, which allowed the foreperson
to check “guilty” for the lesser included offenses, would be
confusing for the jury if they decided the defendant was not
guilty of all the lesser included offenses.
 97a
disclosed during the voir dire process. Juror D told
Attorney Jackson that “he/she was ‘uncomfortable’
with how the trial ended. . . . Juror D said that it
was very troubling that the entire case ended
without the jury being asked about each count,
especially Count 1 and Count 3.” Jackson Supp-
lemental Affidavit at pars. 3-4. According to
Jackson’s Supplemental Affidavit, Juror D told him
that the jury agreed that the defendant was not
guilty on Counts 1 an 3, that they disagreed solely
on Count 2’s lesser offenses, but that they believed
that they were compelled to come to a resolution on
all counts before they could or should report verdicts
on any counts. Juror D believed all jurors would
corroborate his/her account. He/she also stated that
if necessary, he/she would testify before the court as
long as his/her identity remained protected.
On July 18, 2024, Attorney Jackson submitted a
second supplemental affidavit stating that on July 17,
2024, he was contacted by another juror (“Juror E”)
who he identified by the description of who he/she is,
where he/she was seated, and certain identifying
information (name and occupation) disclosed during
the voir dire process. Juror E also stated that the jury
was unanimous on Counts 1 and 3, that the defen-
dant was not guilty of those charges, and that they
were deadlocked on one of the “lower charges” on
Count 2. Jackson Second Supplemental Affidavit at
par. 5.
On August 1,2024, the Commonwealth filed a Post-
Trial Notice of Disclosure stating that ADA Lally had
received two unsolicited voicemails from an
individual identifying themselves as a deliberating
juror stating that the jury had been unanimous on
Counts 1 and 3. The Commonwealth also received
 98a
emails from three individuals identifying themselves
as jurors stating that they wished to speak
anonymously. In its response to the emails, the
Commonwealth stated that it was ethically pro-
hibited from inquiring as to the substance of the jury
deliberations, and that it could not promise
confidentiality as it may be required to disclose the
substance of any conversation to the defendant or the
Court. All three jurors declined to communicate
farther with the Commonwealth.
DISCUSSION
The Fifth Amendment to the United States Con-
stitution, applicable to the States through the
Fourteenth Amendment to the United States Con-
stitution, and Massachusetts common and statutory
law protect an individual defendant from being
twice placed in jeopardy for the same crime. Perrier
v. Commonwealth, 489 Mass. 28, 31 (2022). See
Commonwealth v. Taylor, 486 Mass. 469, 483 (2020),
quoting Oregon v. Kennedy, 456 U.S. 667, 671-672
(1982) (“[T]he [d]ouble [j]eopardy [c]lause affords a
criminal defendant a ‘valued right to have his trial
completed by a particular tribunal’ [citation omit-
ted]). A defendant is entitled to protection from
double jeopardy “if there had been some event, such
as an acquittal, which terminates the original
jeopardy,” see Commonwealth v. Hebb, 477 Mass.
409, 413 (2017), or if a mistrial is entered “without
the defendant’s request or consent . . . unless there
was a manifest necessity for the mistrial” (quotation
and citations omitted). Taylor, 486 Mass. at 483. See
Hebb, 477 Mass. at 413, quoting Yeager v. United
States, 557 U.S. 110, 118 (2009) (“The ‘interest in
giving the prosecution one complete opportunity to
convict those who have violated its laws’ justifies
 99a
treating the jury’s inability to reach a verdict as a
nonevent that does not bar retrial.”).
In her motion to dismiss, the defendant argues that
retrial on Indictments 1 and 3 would violate the
double jeopardy protections of the federal and state
constitutions because, despite absence of a jury ver-
dict, the jury, in fact, reached a unanimous decision
to acquit her on those charges, or alternatively,
because there was no manifest necessity to support
the declaration of the mistrial with respect to the
charges. After careful consid-eration, the Court con-
cludes that the defendant’s arguments are without
merit.
I. Acquittal of the Defendant
The defendant first contends that she was
acquitted on Indictments 1 and 3, and that therefore
retrial is barred based on her attorneys’ affidavits
purporting to reflect statements by jurors that the
jury reached a unanimous conclusion that she was
not guilty on those charges. Although all the
statements in the affidavits are from purported
jurors who wish to remain anonymous, for the
purposes of this motion, the Court accepts the
statements as true and accurate.4 Even doing so, any
agreement among the jurors as to Counts 1 and 3
cannot be considered acquittals for purposes of
double jeopardy.

4
While the Court accepts the averments as true and
accurate, it disagrees with defense counsel’s characterization of
the statements as “strong and uncontradicted.” The substance of
the conversations directly contradicts the notes the jury wrote to
the Court during deliberations, the last of which expresses
disagreement over whether the Commonwealth met its burden
as to the “elements of the charges.” (Emphasis added).
 100a
To trigger double jeopardy protection, [a]n acquit-
tal requires a verdict on the facts and merits”
(citations and quotations omitted). Commonwealth v.
Brown, 470 Mass. 595, 603 (2015). See G. L. c. 263,
§ 7 (“A person shall not be held to answer on a second
indictment or complaint for a crime of which he has
been acquitted upon the facts and merits . . .”). And,
“the only verdict which can be received and regarded,
as a complete and valid verdict of a jury…, is an open
and public verdict . . . affirmed in open court, as the
unanimous act of the jury, and in presence of the
whole panel, so that each juror has an opportunity to
express his dissent to the court, in case his decision
has been mistaken or misrepresented by the foreman
or his fellows, or incase he has been forced into
acquiescence by improper means” (citations omitted).
Commonwealth v. Zekirias, 443 Mass. 27, 33 (2004).
See Mass. R. Crim. P. 27(a) (“The verdict shall be
unanimous. It shall be a general verdict returned by
the jury to the judge in open court. The jury shall file
a verdict slip with the clerk upon the return of the
verdict.”). As such, “the weight of final adjudication”
cannot “be given to any jury action that is not
returned in a final verdict” and a distinction must be
made “between agreement on a verdict, and return,
receipt, and recording of a verdict” (citations omitted).
A Juvenile v. Commonwealth, 392 Mass. 52, 56-57
(1984).
Because there was no open and public verdict
affirmed in open court rendered in this case, the
defendant was not acquitted of any of the charges.
The only unanimous act of the jury here was their
representation to the Court that they were “at an
impasse” and unable to agree on whether the
Commonwealth had established beyond a reason-
able doubt the elements of the charges.” The
 101a
purported later attestations by some jurors, after
they had been dismissed, that the jury had in fact
agreed on some of the charges during deliberations do
not have the “force of a final verdict.” Commonwealth
v. Floyd P., 415 Mass. 826, 831 (1993). See A
Juvenile, 392 Mass. at 57 (after mistrial was declared
due to deadlock, judge did not err in refusing to
accept signed verdict slips recovered from delibera-
tion room showing “not guilty” because “[i]t is not
enough to show that the jury may have agreed on
some issues at some time; if that limited showing
were to control, uncertainties would be invited”); see
also Blueford v. Arkansas, 566 U.S. 599, 606 (2012)
(double jeopardy did not bar retrial after hung jury
where foreperson reported unanimous vote on offense
before deliberations had concluded but deadlock at
conclusion).
The defendant argues that it is elevating form over
substance to not accept that the statements in the
affidavits reflect an acquittal of the defendants on
Counts 1 and 3. However, the rendering of a verdict
in open court is not a “ministerial act” as the
defendant contends. Rather, it communicates the
finality of the deliberations, and its pronouncement
in open court ensures its unanimity. See A Juvenile,
392 Mass. at 57 (“Public affirmation in open court
provides safeguards against mistakes.”). Indeed, the
authority upon which the defendant relies places
particular importance upon the jury’s pronouncement
of its findings in open court. See Blueford, 566 U.S. at
613 (Sotomayor, J., dissenting) (arguing that “the
forewoman’s announcement in open court that the
jury was ‘unanimous against’ conviction on capital
and first-degree murder . . . was an acquittal for
 102a
double jeopardy purposes”). 5 Thus, a “verdict in
substance” is a “final collective decision . . . reached
after full deliberation, consideration, and compromise
among the individual jurors . . . And when that
decision [is] announced in open court, it [becomes]
entitled to full double jeopardy protection” (emphasis
added). Id. at 616, citing Commonwealth v. Roth, 437
Mass. 777, 796 (2002) (“declining to give effect to ‘the
verdict received from the lips of the foreman in open
court’ would ‘elevate form over substance”). Where
there was no verdict announced in open court here,
retrial of the defendant does not violate the principle
of double jeopardy.
II. Manifest Necessity of Mistrial
The defendant’s motion to dismiss also argues that
double jeopardy bars re-prosecution ion because she
did not consent to a mistrial and there was no
manifest necessity to declare one. This argument, too,
is without merit.
“A defendant’s consent to a mistrial removes any
double jeopardy bar to retrial” (quotation and citation
omitted). Pellegrine v. Commonwealth, 446 Mass.
1004, 1005 (2006). Consent may be explicit or
implicit. Explicit consent may occur by either moving
for a mistrial or agreeing to one. Commonwealth v.
Edwards, 491 Mass. 1, 13 (2022). Consent to a

5
In written and oral argument, the defendant also relies on
language from Taylor, 486 Mass. at 482. Taylor discussed
whether a judicial determination to terminate proceeding based
on a procedural ground implicated double jeopardy. The
Supreme Judicial Court explained, “What constitutes an
‘acquittal’ is not to be controlled by tile form of the judge’s
action,” and that the determination does not depend on
“checkmarks on a form.” Id. This language in Taylor does not
inform the Court as to the circumstances here.
 103a
mistrial may be implied “where a defendant had the
opportunity to object [to a declaration of a mistrial]
and failed to do so.” Pellegrine, 446 Mass. at 1005.
See United States v. McIntosh, 380 F.3d 548, 554 (1st
Cir. 2004) (“Where the defendant sits silently by and
does not object to the declaration of a mistrial even
though he has a fair opportunity to do so, a court may
presume hist consent” [quotation and citation
omitted]). See also United States v. You, 382 F.3d 958,
964-965 (9th Cir. 2004), cert. denied, 543 U.S. 1076
(2005) (“a court may infer consent only where the
circumstances positively indicate a defendant’s
willingness to acquiesce in the mistrial order”
[quotations and citations omitted]); United States v.
Goldstein, 479 F.2d 1061, 1067 (2d Cir. 1973)
(“Consent [to a mistrial] need not be express, but may
be implied from the totality of the circumstances
attendant on a declaration of a mistrial.”).
As noted, the Court here declared a mistrial after
the jury reported three times that they were
deadlocked. After the second time, the Court
determined that the jury had engaged in due and
thorough deliberations and gave the Tuey-Rodriguez
instruction before sending the jury to deliberate
further. Massachusetts General Laws c. 234A, § 68C,
provides that if “a jury, after due and thorough
deliberation, returns to court without having agreed
on a verdict, the court may state anew the evidence or
any part of the evidence, explain to them anew the
law applicable to the case and send them out for
further deliberation; but if they return a second time
without; having agreed on a verdict, they shall not be
sent out again without their own consent, unless they
ask from the court some further explanation of
the law” (emphasis added). See Commonwealth v.
Jenkins, 416 Mass. 736, 737 (1994) (“If, after due and
 104a
thorough deliberation, the jury twice advise the judge
that they are unable to reach a verdict, the judge may
not properly’ send the jury out again without their
consent, unless the jury ask for some further ex-
planation of the law.”). In their note to the Court, the
jury specifically stated, “[t]o continue to deliberate
would be futile and only serve to force us to com-
promise these deeply held beliefs,” making, it clear
that they would not consent to continuing their
deliberations.
Attorney Yannetti twice argued for the Court to
give the Tuey-Rodriguez instruction-the final step
before the Court would declare a mistrial. See
Jenkins, 416 Mass. at 737; see also Ray v. Common-
wealth, 463 Mass. 1, 4 (2012) (counsels’ request for
Tuey-Rodriquez instruction “permit[ed] the inference
that both parties were provided an opportunity to
be heard on possible alternatives to a mistrial”).
Specifically, on Friday, June 28, 2024, after three
days of deliberations, when the jury sent their
first note indicating that they had engaged in an
“exhaustive review of the evidence” and “ha[d] been
unable to reach a unanimous verdict,”
Attorney Yannetti argued that the jury had
engaged in due and thorough deliberations, was at an
impasse, and should be given the Tuey-Rodriguez
instruction. The following Monday, when the jury
sent a second note after deliberating for approxi-
mately two hours, stating that “consensus was
unattainable,” Attorney Yannetti again argued that
due and thorough deliberations had occurred and
described the jury as “hopelessly deadlocked.”
Defense counsel, in arguing twice that due and
thorough deliberations had occurred and pushing for
the instruction, presumably was aware of the legal
 105a
implications if the jury returned deadlocked again.
Nevertheless, in a remarkable turnaround, defense
counsel now argues that the result they twice
advocated for was “sudden” and “unexpected.” See
Defendant Karen Read’s Motion to Dismiss at 8.
Although the Court did not specifically ask defense
counsel if they had any objection to the declaration of
a mistrial, counsel had multiple opportunities to voice
an objection if they in fact had one. While waiting for
the jury to enter the courtroom after the Court
announced the jury was again at an impasse on the
afternoon of July 1, 2024, defense counsel could have
asked to be heard on the issue. During the subsequent
discussion about scheduling a status hearing right
after the Court declared a mistrial, counsel had yet
another opportunity to inform the Court of its
dissatisfaction. Lastly, counsel could have communi-
cated to the Court any objection or request to poll the
jurors while the jury was still at the courthouse
waiting in the deliberation room after the declaration
of the mistrial. Instead, defense counsel said nothing
to the Court about the mistrial and then proceeded
to the courthouse steps where Attorney Jackson
declared to the media and onlookers that the
“[Commonwealth] failed miserably and will continue
to fail” with its prosecution of the defendant.6
It strains credulity to believe that if defense
counsel wanted to voice any objection to the Court, it
would not have been heard. Significantly, defense
counsel were no shrinking violets. Neither Attorney
Jackson nor Attorney Yannetti has ever needed this
Court to inquire whether counsel had an objection in
order to be heard, and the Court has never denied

6
See [Link]
 106a
counsel the opportunity to be heard in open court or
at sidebar. The Court reconvened many times at
counsel’s request. Just days before the declaration of
mistrial, defense counsel asked to address the Court
while the jury was deliberating to raise an objection
about the verdict slip. Attorney Jackson was not shy
in informing the Court that he wanted to “make [his]
argument” and that the Court’s decision about the
verdict slip was “not how it should be and it’s over
our strong objection.” 7 Attorney Jackson went so far
as to suggest that “it was almost like the Court is
directing a verdict of the subordinate charges” by not
making changes he wanted. The Court finds it hard
to believe that when counsel heard that the jury was
at an impasse for a third time and a mistrial was
inevitable, at perhaps the most crucial point in the
trial, counsel would sit silently if they did not consent
to a mistrial.
As such, the Court does not credit Attorney
Jackson’s averment that he lacked an opportunity to
be heard. Defense counsel’s silence despite ample
opportunity to be heard is deemed consent. See
Pellegrine, 446 Mass. at 1005 (when trial judge on
own initiative declared mistrial, defendant’s silence
was deemed consent where there was ample time to
object despite not being directly asked by judge). Cf.
Commonwealth v. Phetsaya, 40 Mass. App. Ct. 293
298 (1996) (silence was not consent where judge’s
conduct was “so intimidating to defense counsel . . . as
to foreclose any objection from defense counsel to the
declaration of a mistrial”).
Even assuming arguendo that the defendant here
did not consent to the mistrial, the law is clear that a

7
See [Link]
 107a
retrial is permissible so long as there was manifest
necessity for the mistrial. Taylor, 486 Mass. at 483.
“The trial judge’s belief that the jury is unable to
reach a verdict has long been considered the classic
basis for a proper mistrial” (quotation and citation
omitted). Ray, 463 Mass. at 3. See Oregon, 456 U.S.
at 672 (describing “hung jury” as “prototypical
example” of manifest necessity). Because the Court
here had no doubt based on the jury’s rotes to the
Court that it was unable to reach a unanimous
verdict and the jury represented to the Court that
continued deliberations would be futile, there was
manifest necessity for the mistrial based on the
deadlock.
As stated above, the foreperson, on behalf of the
jury in this case, sent the Court three notes, none of
which indicated agreement on any of the charges. In
the first note, the jury wrote that they had been
“unable to reach a unanimous verdict.” In the second
note, they stated that they were “deeply divided by
fundamental differences in our opinions and state of
mind” arid that “consensus is unattainable.” In their
third and final note, after they had been given the
Tuey Rodriguez instruction, the jury stated that they
continued to be “at an impasse.” They described
themselves as “starkly divided” on their “perspectives
on the evidence” explaining:
“Some members of the jury firmly believe
that the evidence surpasses the burden of
proof establishing the elements of the
charges beyond a reasonable doubt. Con-
versely, others find the evidence fails to meet
this standard and does not sufficiently
establish the necessary elements of the
charges. The deep division is not due to lack
 108a
of effort or diligence, but rather a sincere
adherence to our individual principles and
moral convictions. To continue to deliberate
would be futile and only serve to force us to
compromise these deeply held beliefs.”
The only reasonable interpretation of these notes,
and specifically the final note, was that the jury could
not agree on any of the three charges and further
deliberations would serve no purpose.8
For the defense to now claim that the notes were
susceptible to different interpretations such that the
Court should have inquired further rings hollow,
particularly where Attorney Yannetti had twice
argued that the jury had engaged in due and thorough
deliberations and could, not agree. See United States
v. Keene, 287 F.3d 229, 234 (1st Cir. 2002) (no abuse
of discretion in declaring a mistrial given “the
increasingly adamant manner in which the jurors
announced that they were deadlocked”). Moreover,
defense counsel’s conduct immediately after the
declaration of the mistrial in no way suggests that
they thought otherwise.
The defendant contends that the Court failed to
carefully consider that as an alternative to a mistrial,
it could have “simply ask[ed] the jury to specify the
charge(s) on which it was deadlocked.” Defendant
Karen Read’s Motion to Dismiss at 8. However, “[t]he
question whether a mistrial is appropriate in the

8
Given the care that went into writing the notes and how
articulately they expressed the jurors’ disagreement, it strikes
this Court as odd that there was no inkling of an indication of
agreement in the content of the notes or that if the jurors were
uncertain whether they could return a partial verdict, they
would not have asked the Court.
 109a
circumstances of a given case is not answered by
application of a ‘mechanical formula.’“ Ray, 463
Mass. at 4, quoting Illinois v. Somerville, 410 U.S.
458, 462 (1973). See Commonwealth v. Bryant, 447
Mass. 494, 503 (2006) (decision: whether to declare a
mistrial is within the discretion of the trial judge).
Rather, the Court considers several facts such as
the statements in a jury’s note concerning their
inability to reach an agreement, the time spent in
deliberations, and the length and complexity of the
trial. Ray, 463 Mass. at 4-5. See Renico v. Lett, 559
U.S. 766, 775 (2010) (“we have never required a trial
judge, before declaring a mistrial based on jury
deadlock, to force the jury to deliberate for a
minimum period of time, to question the jurors
individually, to consult with (or obtain the consent of)
either the prosecutor or defense counsel, to issue a
supplemental jury instruction, or to consider any
other means of breaking the impasse”).
Where here, the jury had been deliberating five
days, had returned to the Court three times stating
they could not agree, had been given the Tuey-
Rodrigez instruction and returned hours later with a
note plainly indicating that they could not agree as to
the “elements of the charges” and that “to continue to
deliberate would be futile,” asking the jury on which
charges they were deadlocked was not necessary to
determine that there was manifest necessity for a
mistrial. See Fuentes v. Commonwealth, 448 Mass.
1017, 1018-1019 (2007) (where final note from the
foreperson unequivocally stated that the jury were
“unable to come to a unanimous decision,” judge was
not required to inquire whether there was any
reasonable probability of unanimous verdicts or if the
jury would consent to further deliberations); Ray, 463
Mass. at 6 n.5 (judge did not err in declining to poll
 110a
jury on whether further instructions or deliberation
would be likely to resolve the deadlock).
Moreover, the defendant’s argument ignores the
fact that one of the three charges had lesser included
offenses. Therefore, if upon questioning, the jury had
indicated to the Court that they were not deadlocked
on all the charges, the only option would have been
for the Court to send the jury back for further
deliberations. See A Juvenile, 392 Mass. at 56 (judge
should not inquire as to partial verdicts on lesser
included offenses). Such action would be improperly
coercive under the circumstances. It has been
repeatedly recognized that deadlocked juries are
particularly susceptible to coercion. Roth, 437 Mass.
at 791. “Where the jurors have twice reported them-
selves deadlocked, and have already heard the Tuey-
Rodriquez charge, a judge’s inquiry concerning
partial verdicts cannot avoid communicating to the
jury the judge’s desire to salvage something from the
trial.” Id at 792 (emphasis in original). Where here
the jury had before it one indictment which included
lesser included offenses, had three times reported
themselves deadlocked on separate charges, had
already heard the Tuey-Rodriguez charge, and had
sent a final note indicating that continued delibera-
tions would only “serve to force [them] to compromise
[their] deeply held beliefs,” sending them to deliber-
ate further would have been improperly coercive.9

9
It is the Court’s view that under these circumstances, even
posing the question to the jury of whether they actually were
deadlocked would have implied to the jurors that the Court
wanted them to resume deliberations to reach a verdict. Given
that Attorney Jackson had already expressed concern that the
Court was “directing a verdict of the subordinate charges,” the
Court was extremely cautious to not give any appearance of
 111a
The defendant’s argument suggests that question-
ing or polling jurors who report a deadlock is best
practice or at least commonly done by trial judges.
However, the defendant has not cited any cases
saying as much and indeed, such an inquiry is not
undertaken in the regular course.10 For a judge to
make such an inquiry on her own accord could
impede upon the strategic decision of counsel to not
make such a request. The defendant’s argument is
based on hindsight. No one other than the jury knew
that questioning the jurors as to their deadlock would
have yielded a favorable outcome for the defendant.
It is likely for that reason, defense counsel consented
to this Court’s declaration of a mistrial.
III. Post-Trial Inquiry
The defendant alternatively requests that the
Court allow counsel to conduct a post-trial inquiry of
the jurors to “substantiate the existence of an
acquittal.” Defendant Karen Read’s Motion to Dis-
miss at 9. Such an inquiry is impermissible.

partiality. See United States v. Hotz. 620 F.2d 5. 7 (1st Cir.

1980) (noting that a court must avoid putting pressure on the
jury).
10
The defendant relies on Commonwealth v. Foster, 411
Mass. 762 (1992) and Commonwealth v. LaFontaine, 32 Mass.
App. Ct. 529 (1992) to argue that there would be nothing
coercive about asking a jury reporting a deadlock whether they
had reached a unanimous verdict on any of the counts. Because
neither the jury in Foster nor the jury in LaFontaine reported
being deadlock in its deliberations, and none of the offenses
charged had lesser included offenses, there was clearly no risk
of coercion in the courts seeking partial verdicts on the separate
indictments in those case. The circumstances here are markedly
different.
 112a
The defendant’s argument relies solely on
Commonwealth v. McCalop, 485 Mass. 790 (2020). In
McCalop, the Supreme Judicial Court held that the
trial court should have allowed the defendant’s
motion for jurors’ names and contact information
based on the post-trial statement of a deliberating
juror regarding racist statements made during delib-
erations. Id. at 791. The Supreme Judicial Court
explained, “[t]he presence of even one juror who is
not impartial violated a defendant’s right to trial by
an impartial jury.” Id. at 798, quoting Common-
wealth v. McCowen, 458 Mass. 461, 494 (2010).
Recognizing that “[r]acial bias in the jury system is ‘a
familiar and recurring evil that, if left unaddressed,
would risk systemic injury to the administration of
justice,’“ the McCalop court held that the defendant
should have been given a “fair opportunity to obtain
an affidavit from that juror setting forth with some
specificity who among the jurors made statements
reflecting racial bias . . . and the statements that
were made.”
McCalop, 485 Mass. at 799, quoting Pena-
Rodriguez v. Colorado, 580 U.S. 206, 224 (2017). The
defendant’s argument here does not implicate racial
bias or her right to receive an impartial trial. Thus,
the reasoning the Court employed in McCalop does
not extend to this case. See Commonwealth v.
DiBenedetto, 94 Mass. App. Ct. 682, 687 (2019)
(declining to extend racial bias exception to inquiry of
jury unanimity because “infection of the criminal
justice system with racial or ethnic bias is a unique
type of constitutional deprivation that requires a
vigilant response not warranted in the circumstances
presented here”).
 113a
The defendant’s request effectively seeks permis-
sion from the Court to inquire from deliberating
jurors that which is impermissible—information
regarding the substance of the jury’s deliberations.
“The secrecy of jury deliberations has served as a
bedrock of our judicial system, and inquiry into the
‘jury’s deliberative processes . . . would intrude
improperly into the jury’s function” (quotation and
citation omitted). Commonwealth v. Moore, 474 Mass.
541, 548 (2016). It is simply not the case, given the
content of the jury’s final note to the Court, that any
inquiry to jurors now could be limited solely to the
results of the deliberative process and not implicate
the process itself. Any inquiry would necessarily
require the Court to understand why the jury’s final
note communicated a deadlock on the charges when
post-trial, certain deliberating jurors are purportedly
stating that the jury was, in fact, unanimous on most
of the charges. While the defendant contends that the
conflict is reflective of the fact that the instructions
given to the jury by the Court were confusing,
determining whether this is true would necessarily
require inquiry into the back and forth among the
jurors during deliberations.
See DiBenedetto, 94 Mass. App. Ct. at 686 (“The
judge is precluded from inquiring into the; internal
decision making process of the jury as a whole or of
the individual juror being questioned . . . Accordingly,
evidence that jurors misunderstood the instructions
of the presiding judge . . . cannot be considered”
[internal quotations and citations omitted]). Thus,
such an inquiry is prohibited.
The defense counsel has not cited one case
suggesting the post-trial inquiry they now seek is
appropriate or that it could change the outcome of the
 114a
11
proceedings. For the reason already discussed, an
acquittal of the defendant now on Indictments 1 and
3 based on conclusions purportedly reached during
the jury’s deliberations is not possible. Therefore,
there is no reason for the Court to allow post-trial
inquiry of the jurors. See A Juvenile, 392 Mass at 57
(no error in denial of motion to subpoena the foreman
where process would only serve to impeach jury’s
report to the judge in open court).
CONCLUSION AND ORDER
This Court recognizes that the bar on retrials
following acquittals is “[p]erhaps the most fund-
amental rule in the history of double jeopardy
jurisprudence.” Taylor, 486 Mass. at 481’, quoting
United States v. Martin Linen Supply Co., 430 U.S.
564, 571 (1977). However, where there was no
acquittal on any of the charges in the defendant’s
first trial, there is no risk of subjecting the defendant
to double jeopardy by retrial on all the charges.
Therefore, the Defendant’s Motion to Dismiss is
DENIED.

Date: August 22, 2024

/s/ Beverly J. Cannone

Beverly J. Canone
Justice of the Superior Court

11
Cases that defense counsel referred to at the hearing on
this motion concerning post-trial inquiry of jurors where juror
bias or outside influence was at issue are readily distinguish-
able from the circumstances here.